It Chief Justice now holds all of the Lord

It is true to say that in the past the courts have been subservient to the UK Parliament. While the UK does not have a written or strictly codified constitution, Parliamentary Sovereignty – the principle that Parliament is superior to the other estates of government- has been a fundamental part of our constitution. The Constitutional Reform Act (2005) brought about landmark changes to the English Constitution, and it has been argued that that these changes amount to a judiciary that is independent and no longer subordinate to Parliament, thus giving more confidence to the uk courts to adopt new roles that they have not done so before. ┬áThe main line of argument for this view is regarding the three main sections of the Constitutional Reform Act 2005. The three main aims of the act include the reformation of the office of the Lord Chancellor, a Supreme Court enactment to replace the appellate jurisdiction of the House of Lords and finally, the regulation of the appointment of judges. Prior to the enactment of the Constitutional Reform Act, judges were appointed by the Prime Minister and the Lord Chancellor. In addition to this, the highest court in the UK had been the appellate committee of the House of Lords and the Lord Chancellor. This meant that the highest Court of Appeal available in the UK was in fact within the House of Lords. This, arguably so, meant that there was a clear risk of political influence and bias. As said above, prior to the 2005 Act, the Lord Chancellor had responsibilities and tasks that undermined the idea of a separation of powers. Essentially this was because the Lord Chancellor was actively involved in all 3 branches of government. Although there is no strict doctrine of separation of powers in the UK, it was still in breach of Article 6 of the European Convention on Human Rights “the right to a fair trial’, which essentially states that judges need to be independent of the government to avoid bias and to ensure a fair trial. Because of this, the 2005 act made significant changes to his position. One of the changes was that the Lord Chief Justice now holds all of the Lord Chancellor’s previous judicial responsibilities to further distance the judiciary from parliament and establish it as a separate estate. In addition, the Lord Chancellor was replaced by the Lord Speaker as speaker of the House of Lords – confining his role only to the executive. The next section of the 2005 Act instructed the creation of the Supreme Court, with an intent to disconnect the three branches from each other and establish a clearer separation of powers, specifically between the judiciary and legislature. Prior to the Constitutional Reform Act 2005, cases warranting further appeal after an unsatisfactory or inconclusive result in the court of appeal would be raised with the Lords of Appeal in Ordinary (more commonly known as “Law Lords”) in the House of Lords. Under the 2005 Act, the first 12 judges appointed to be Justices on the Supreme Court were the original Law Lords, however they were no longer allowed to sit in the House of Lords or to cast any votes. This was intending to draw the line between the different branches of government by ensuring that the judiciary was completely separate from Parliament. this essentially created a physical division with the basing of the Supreme Court at Middlesex Guildhall, as well as a constitutional one by minimising Parliament’s involvement in the court and preventing members of either institution from sitting in the other. The final change that the act enforced was the creation of the Judicial Appointments Commission. Prior to the Act, the Queen on advice from the Lord Chancellor would select all appointments within the judiciary. However, the powers and remit of the Lord Chancellor to advise (but in effect via the royal prerogative) in this role have always been controversial because of the risk of the political influence, with the Law Society actually pulling out of ‘secret soundings’ to select judges in 1991 to protest it. The Judicial Appointment Commission, under the Act, suggests a candidate to which the Lord Chief Justice says either yes or no to. This is aiming to reduce the risk of political bias and rather ensure that people are appointed purely on merit. This is effective as the commission is an independent body that selects candidates on “merit, through fair and open competition”.Clearly these changes made under the Constitutional Reform Act 2005 have promoted independence between Parliament and the courts, which was non existent before. It can be argued that this clearer separation of powers and greater independence has given courts a less subordinate role and even ‘more confidence’ to adopt such roles. However the courts are still subordinate to Parliament and there are still evident differences between the courts in the UK and those of other constitutions which need to be noted to highlight the extent to which this subservience still exists. Parliamentary Sovereignty is a key principle of the UK constitution. It states that Parliament is ‘the most supreme legal authority in the UK’ and therefore, the courts are subordinate and cannot overrule Parliament on any of it’s legislation. Dicey speaks about the importance of Parliamentary sovereignty in the UK and explains his ‘traditional view’ on it by saying that ‘Parliament has, under the English constitution, the right to make or unmake any laws’. This definition outlines exactly the power that Parliament has in the UK. Baroness Hale of Richmond speaks about the distinction between political constraints on Parliament and legal limitation, adding in that ‘the concept of Parliamentary sovereignty which has been fundamental to the constitution of England and Wales…means that Parliament can do anything’.


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