The Constitutional Reform Act 2005 is a significant piece of legislation that introduced major changes to the constitutional framework of the United Kingdom.
A House of Lords Select Committee on the Constitution produced a report with evidence in relation to the Constitutional Reform Act 2005
Explanatory notes to accompany the legislation were also published. The Act received Royal Assent on 24th March 2005.
The Act was intended to modernise and streamline the UK’s constitutional arrangements and strengthen the independence of the judiciary.
This article will examine the key changes introduced by the Constitutional Reform Act 2005, why it is important, and other legislation it superseded. It will also focus on the creation of the Judicial Appointments Commission (JAC), the establishment of the Supreme Court and the appointment of the heads of Criminal and Family justice.
Creation of the Judicial Appointments Commission
The creation of the Judicial Appointments Commission (JAC) was one of the most significant changes introduced by the Constitutional Reform Act 2005. The JAC is responsible for appointing judges to the Supreme Court, the Court of Appeal, and other senior judicial positions. It was established to ensure that appointments were made on the basis of merit and not political considerations.
Before the creation of the JAC, judicial appointments were made by the Lord Chancellor. However, this process was criticized for being opaque and potentially open to political interference.
The creation of the JAC addressed these concerns by establishing an independent body to oversee the appointment of judges. The JAC has been praised for increasing the diversity of the judiciary, with more women and ethnic minorities appointed to senior judicial positions since its creation.
The JAC is made up of 15 Commissioners, including the Chairman, including the Lord Chief Justice, the President of the Supreme Court, and seven non-lawyers appointed by the Lord Chancellor. The Commission is responsible for advertising vacancies, shortlisting candidates, and making recommendations to the Lord Chancellor for appointment.
The Lord Chancellor is required to follow the Commission’s recommendations, except in exceptional circumstances.
The creation of the JAC has had a significant impact on the UK’s constitutional order.
It has helped to ensure that appointments to the judiciary are made on the basis of merit and not political considerations, which has helped to strengthen the independence of the judiciary.
Establishment of the Supreme Court
Another significant change introduced by the Constitutional Reform Act 2005 was the establishment of the Supreme Court. Prior to the Act, the highest court in the UK was the Appellate Committee of the House of Lords.
This arrangement was criticized for blurring the lines between the judiciary and the legislature, as the House of Lords was also a legislative body.
The establishment of the Supreme Court was intended to address these concerns by creating a separate and independent court to hear the most important cases.
The Supreme Court is now the final court of appeal in the UK for civil cases, and for criminal cases in England, Wales, and Northern Ireland.
The Supreme Court is made up of 12 judges, who are appointed by an independent selection commission. The establishment of the Supreme Court has helped to strengthen the independence of the judiciary by creating a separate and distinct court to hear the most important cases. It has also helped to clarify the separation of powers between the judiciary and the legislature.
Appointment of the Heads of Criminal and Family Justice
The Constitutional Reform Act 2005 also introduced changes to the appointment of the heads of criminal and family justice.
Before the Act, the Lord Chancellor had the responsibility of appointing judges to the Court of Appeal and the High Court. The Lord Chancellor also had the authority to make appointments to the heads of the criminal and family justice systems.
However, the Act removed these powers from the Lord Chancellor and transferred them to the Lord Chief Justice.
The Lord Chief Justice became responsible for appointing the heads of the criminal and family justice systems, including the Lord Chief Justice of England and Wales, the Master of the Rolls, the President of the King’s Bench Division, the President of the Family Division, and the Chancellor of the High Court.
This change was intended to strengthen the independence of the judiciary and remove any potential political influence from the appointment process.
The appointment of the heads of criminal and family justice is now made by a selection panel, which is chaired by the Lord Chief Justice and includes other senior members of the judiciary, as well as lay members. The panel makes recommendations to the Lord Chancellor, who must follow their advice unless there are exceptional circumstances.
The transfer of these powers from the Lord Chancellor to the Lord Chief Justice was a significant change that helped to further separate the judiciary from the executive. It ensured that appointments to the heads of the criminal and family justice systems were made on the basis of merit and not political considerations.
Superseded Legislation
The Constitutional Reform Act 2005 superseded several pieces of legislation, including the Judicial Appointments Commission Act 2004, the Supreme Court Act 1981, and the Appellate Jurisdiction Act 1876.
The Judicial Appointments Commission Act 2004 was repealed and replaced by the provisions of the Constitutional Reform Act 2005 that established the JAC.
The Supreme Court Act 1981 was also repealed, and the Supreme Court was established as a separate court under the new Act.
Finally, the Appellate Jurisdiction Act 1876 was repealed, and the judicial functions of the House of Lords were transferred to the Supreme Court.
A number of existing legislations were also affected, such as the Habeas Corpus Act 1679 and the Ecclesiastical Licences Act 1533.
The Oath of the Lord Chancellor
Finally, the Constitutional Reform Act 2005 Part 2 Section 17 introduced changes to the oath taken by the Lord Chancellor.
“I, , do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God.”
Oath of the Lord Chancellor
Before the Act, the Lord Chancellor was required to swear an oath of allegiance to the King and to promise to uphold the judiciary’s independence. However, the Lord Chancellor was also a member of the executive and had political responsibilities.
The Act introduced a new oath for the Lord Chancellor, which removed any reference to political responsibilities.
The new oath requires the Lord Chancellor to swear to respect the rule of law, defend the independence of the judiciary, and ensure that justice is accessible to all. This change was intended to clarify the Lord Chancellor’s role as a guardian of the judiciary’s independence and to remove any potential conflicts of interest.
Conclusion
The Constitutional Reform Act 2005 was a significant piece of legislation that introduced major changes to the constitutional framework of the UK.
These changes have helped to strengthen the independence of the judiciary and clarify the separation of powers between the judiciary and the executive.
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