Constitutional Reform Act 2005
Encyclopedia
The Constitutional Reform Act 2005 (c. 4) is an Act
of the Parliament of the United Kingdom
. It provided for a Supreme Court of the United Kingdom
to take over the existing role of the Law Lords as well as some powers of the Judicial Committee of the Privy Council
, and removed the functions of Speaker
of the House of Lords
and Head of the Judiciary of England and Wales
from the office of Lord Chancellor
.
. The reform was motivated by concerns that the historical admixture of legislative, judicial, and executive power might not conform with the requirements of Article 6 (paragraph 1) of the European Convention on Human Rights
, because a judicial officer, having legislative or executive power, is likely not to be considered sufficiently impartial to provide a fair trial.
on 24 February 2004, and proposed the following, much broader, changes:
The Bill
caused much controversy and the Lords made amendments to it. The final Act keeps the post of Lord Chancellor, though its role in relation to the judiciary is greatly reduced and the office holder is no longer automatically Speaker of the House of Lords. Another major change is that the Lord Chancellor can now be from either the House of Commons
or the House of Lords
. Other measures remain generally the same as stated above.
The newly created Cabinet
position of Secretary of State for Constitutional Affairs
(originally created to wholly replace the Lord Chancellor's executive function) will continue, although the holder of that Cabinet post — renamed Secretary of State for Justice in 2007 — currently also holds the office of Lord Chancellor. The Lord Chancellor will remain as the custodian of the Great Seal
(the Bill originally intended to put this into commission).
The Bill was approved by both Houses on 21 March 2005, and received Royal Assent
on 24 March.
The establishment of a new Supreme Court is the main subject of the Act and it had consequences for the House of Lords and the office of Lord Chancellor. The sections contained in Part 3 prescribe that the Supreme Court will be composed of 12 judges (s. 23) and that the first judges will be the current twelve Lords of Appeal in Ordinary (s. 24). The following sections (ss. 26-31) set out the rules for the appointment of future members of the Court. A selection commission headed by the President of the Supreme Court (schedule 8) will propose one name to the Lord Chancellor who can reject that name only one time. Sections 32 to 37 are entitled Terms of Appointment and deal with issues such as tenure, salaries and allowances, resignation and retirement, and pensions. Section 37 additionally sets out that the new Court will assume the jurisdiction of the House of Lords and the jurisdiction in matters of devolution of the Privy Council
.
The following sections deal with practical matters such as procedures, staff, and resources of the new Court and the fees of the judges. The Chief Executive of the Supreme Court must prepare an annual report on the work and it must be presented to both Houses of Parliament (s. 51).
In the third part of the Act there are provisions in regard to the appointment of judges. In 1991 the Law Society
had criticized the old system (the Queen appointing judges on the advice of the Lord Chancellor), emphasizing its defects and recommending the establishment of an independent body responsible for appointing judges. The Constitutional Reform Act realized the hopes of the Law Society. Section 61 prescribes the creation of a Judicial Appointments Commission, which is now responsible for the appointment of judges for English and Welsh courts. The following sections regulate the structure and the procedures of the Commission.
Although the Appellate Committee of the House of Lords is abolished, the currently serving Law Lords keep their judicial role in the new Supreme Court. Newly appointed members of the Court will not take the peerage and will be called Justices of the Supreme Court. The Lord Chief Justice
replaces the Lord Chancellor as head of the English judiciary.
The new Supreme Court sits in a separate building from the Houses of Parliament where the House of Lords formerly performed its judicial functions
. After a lengthy survey of suitable sites, including Somerset House
, it was decided that the location for the new court would be Middlesex Guildhall
, in Parliament Square
, Westminster
, which was formerly a Crown court
building. Lord Foster was chosen to make the necessary alterations. The building reopened as the Supreme Court
on the 1st of October 2009.
The Constitutional Reform Act 2005 (Commencement No. 8) Order 2007 (S.I. 2007/1121 (C. 51)) was made under section 148(3)
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
. It provided for a Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
to take over the existing role of the Law Lords as well as some powers of the Judicial Committee of the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
, and removed the functions of Speaker
Lord Speaker
The Lord Speaker is the speaker of the House of Lords in the Parliament of the United Kingdom. The office is analogous to the Speaker of the House of Commons: the Lord Speaker is elected by the members of the House of Lords and is expected to be politically impartial.Until July 2006, the role of...
of the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
and Head of the Judiciary of England and Wales
Judiciary of England and Wales
There are various levels of judiciary in England and Wales — different types of courts have different styles of judges. They also form a strict hierarchy of importance, in line with the order of the courts in which they sit, so that judges of the Court of Appeal of England and Wales are generally...
from the office of Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
.
Background
The office of Lord Chancellor was reformed to remove the ability of the holder to act as both a government minister and a judge. This arrangement ran contrary to the idea of separation of powersSeparation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
. The reform was motivated by concerns that the historical admixture of legislative, judicial, and executive power might not conform with the requirements of Article 6 (paragraph 1) of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, because a judicial officer, having legislative or executive power, is likely not to be considered sufficiently impartial to provide a fair trial.
Legislative history
The Bill was originally introduced in the House of LordsHouse of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
on 24 February 2004, and proposed the following, much broader, changes:
- Abolition of the office of "Lord High Chancellor of Great Britain", generally known as the Lord ChancellorLord ChancellorThe Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
. - Setting up of a "Supreme Court of the United KingdomSupreme Court of the United KingdomThe Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
" and moving the Law Lords out of the House of Lords to this new court. - Other measures relating to the judiciary, including changes to the position of the Lord Chief Justice and changes to the Judicial Committee of the Privy CouncilJudicial Committee of the Privy CouncilThe Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
.
The Bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
caused much controversy and the Lords made amendments to it. The final Act keeps the post of Lord Chancellor, though its role in relation to the judiciary is greatly reduced and the office holder is no longer automatically Speaker of the House of Lords. Another major change is that the Lord Chancellor can now be from either the House of Commons
British House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...
or the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
. Other measures remain generally the same as stated above.
The newly created Cabinet
Cabinet of the United Kingdom
The Cabinet of the United Kingdom is the collective decision-making body of Her Majesty's Government in the United Kingdom, composed of the Prime Minister and some 22 Cabinet Ministers, the most senior of the government ministers....
position of Secretary of State for Constitutional Affairs
Secretary of State for Constitutional Affairs
The Secretary of State for Justice is a senior position in the cabinet of the United Kingdom. It was created in 2007 replacing the abolished Secretary of State for Constitutional Affairs, which was originally intended to fulfil those functions of the office of Lord Chancellor which related to the...
(originally created to wholly replace the Lord Chancellor's executive function) will continue, although the holder of that Cabinet post — renamed Secretary of State for Justice in 2007 — currently also holds the office of Lord Chancellor. The Lord Chancellor will remain as the custodian of the Great Seal
Great Seal of the Realm
The Great Seal of the Realm or Great Seal of the United Kingdom is a seal that is used to symbolise the Sovereign's approval of important state documents...
(the Bill originally intended to put this into commission).
The Bill was approved by both Houses on 21 March 2005, and received Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
on 24 March.
Changes resulting from the Act
The Act contains provisions which reform several institutions of the United Kingdom. The document is divided into three parts: the first concerns the reform of the office of Lord Chancellor, the second is about the new Supreme Court, and the third regulates the appointment of judges.The establishment of a new Supreme Court is the main subject of the Act and it had consequences for the House of Lords and the office of Lord Chancellor. The sections contained in Part 3 prescribe that the Supreme Court will be composed of 12 judges (s. 23) and that the first judges will be the current twelve Lords of Appeal in Ordinary (s. 24). The following sections (ss. 26-31) set out the rules for the appointment of future members of the Court. A selection commission headed by the President of the Supreme Court (schedule 8) will propose one name to the Lord Chancellor who can reject that name only one time. Sections 32 to 37 are entitled Terms of Appointment and deal with issues such as tenure, salaries and allowances, resignation and retirement, and pensions. Section 37 additionally sets out that the new Court will assume the jurisdiction of the House of Lords and the jurisdiction in matters of devolution of the Privy Council
Privy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...
.
The following sections deal with practical matters such as procedures, staff, and resources of the new Court and the fees of the judges. The Chief Executive of the Supreme Court must prepare an annual report on the work and it must be presented to both Houses of Parliament (s. 51).
In the third part of the Act there are provisions in regard to the appointment of judges. In 1991 the Law Society
Law Society of England and Wales
The Law Society is the professional association that represents the solicitors' profession in England and Wales. It provides services and support to practising and training solicitors as well as serving as a sounding board for law reform. Members of the Society are often consulted when important...
had criticized the old system (the Queen appointing judges on the advice of the Lord Chancellor), emphasizing its defects and recommending the establishment of an independent body responsible for appointing judges. The Constitutional Reform Act realized the hopes of the Law Society. Section 61 prescribes the creation of a Judicial Appointments Commission, which is now responsible for the appointment of judges for English and Welsh courts. The following sections regulate the structure and the procedures of the Commission.
Although the Appellate Committee of the House of Lords is abolished, the currently serving Law Lords keep their judicial role in the new Supreme Court. Newly appointed members of the Court will not take the peerage and will be called Justices of the Supreme Court. The Lord Chief Justice
Lord Chief Justice of England and Wales
The Lord Chief Justice of England and Wales is the head of the judiciary and President of the Courts of England and Wales. Historically, he was the second-highest judge of the Courts of England and Wales, after the Lord Chancellor, but that changed as a result of the Constitutional Reform Act 2005,...
replaces the Lord Chancellor as head of the English judiciary.
The new Supreme Court sits in a separate building from the Houses of Parliament where the House of Lords formerly performed its judicial functions
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
. After a lengthy survey of suitable sites, including Somerset House
Somerset House
Somerset House is a large building situated on the south side of the Strand in central London, England, overlooking the River Thames, just east of Waterloo Bridge. The central block of the Neoclassical building, the outstanding project of the architect Sir William Chambers, dates from 1776–96. It...
, it was decided that the location for the new court would be Middlesex Guildhall
Middlesex Guildhall
The Middlesex Guildhall is the home of the Supreme Court of the United Kingdom and of the Judicial Committee of the Privy Council. It stands on the south-west corner of Parliament Square in London.-History:...
, in Parliament Square
Parliament Square
Parliament Square is a square outside the northwest end of the Palace of Westminster in London. It features a large open green area in the middle, with a group of trees to its west. It contains statues of famous statesmen and is the scene of rallies and protests, as well as being a tourist...
, Westminster
City of Westminster
The City of Westminster is a London borough occupying much of the central area of London, England, including most of the West End. It is located to the west of and adjoining the ancient City of London, directly to the east of the Royal Borough of Kensington and Chelsea, and its southern boundary...
, which was formerly a Crown court
Crown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
building. Lord Foster was chosen to make the necessary alterations. The building reopened as the Supreme Court
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
on the 1st of October 2009.
Section 148 - Commencement
The following orders were made under section 148(1):- The Constitutional Reform Act 2005 (Commencement No. 1) Order 2005 (S.I. 2005/1431 (C. 61))
- The Constitutional Reform Act 2005 (Commencement No. 2) Order 2005 (S.I. 2005/2284 (C. 96))
- The Constitutional Reform Act 2005 (Commencement No. 3) Order 2005 (S.I. 2005/2505 (C. 106))
- The Constitutional Reform Act 2005 (Commencement No. 4) Order 2006 (S.I. 2006/228 (C. 5))
- The Constitutional Reform Act 2005 (Commencement No. 5) Order 2006 (S.I. 2006/1014 (C. 33))
- The Constitutional Reform Act 2005 (Commencement No. 6) Order 2006 (S.I. 2006/1537 (C. 55))
- The Constitutional Reform Act 2005 (Commencement No. 7) Order 2007 (S.I. 2007/967 (C. 40))
- The Constitutional Reform Act 2005 (Commencement No. 9) Order 2007 (S.I. 2007/1252 (C. 54))
- The Constitutional Reform Act 2005 (Commencement No. 10) Order 2008 (S.I. 2008/2597 (C. 114))
- The Constitutional Reform Act 2005 (Commencement No. 11) Order 2009 (S.I. 2009/1604 (C. 83))
The Constitutional Reform Act 2005 (Commencement No. 8) Order 2007 (S.I. 2007/1121 (C. 51)) was made under section 148(3)
External links
- House of Common Reports on Bills January 2005 Scroll halfway down the page for this Bill's two reports.
- Department for Constitutional Affairs The official website of the Department of Constitutional Affairs, which includes a section on constitutional reform in the UK
- The election and role of the new Lord Speaker of the House of Lords
UK Legislation
- Explanatory notes to the Constitutional Reform Act 2005.