Study Notes

Constitutional Reform Act 2005

AS, A-Level
AQA, Edexcel, OCR, IB

Last updated 22 Mar 2021

The Constitutional Reform Act 2005 was an Act of the UK Parliament that was divided into three parts. The first reformed the office of Lord Chancellor, the second created and set the framework for a UK Supreme Court and the third regulates the appointment of Judges.

Previously, the highest court in the land had been the Appellate Committee of the House of Lords, and the Lord Chancellor - a minister - was also head of the Judiciary. This meant that the highest court of appeal in the UK was within the House of Lords, and thus it was suspected that appeals would be subject to political influence.

The creation of the Supreme Court was aimed to achieve a clearer Separation of Powers between the legislature and the judiciary. The Court has its own building, the Middlesex Guildhall, on the other side of Parliament Square, separate from Parliament. When the Supreme Court was created eleven of the twelve Justices of the Supreme Court were recruited from the previous top judges (the “Law Lords”). Though they retain their titles they cannot sit or vote in the House of Lords. Future recruits will not be given peerages.

Previously, judges were appointed by the Queen on the advice of the Lord Chancellor, which made those appointments appear subject to political influence. The Constitutional Reform Act created the Judicial Appointments Commission. This independent commission proposes a candidate, and the Secretary of State for Justice can only say Yes or No. This should increase the feeling that judicial appointments are being made on merit rather than on political grounds.

Under the Act the Secretary of State for Justice also currently holds the office of Lord Chancellor, although with the greatly reduced role. The Lord Chancellor also used to be Speaker of the House of Lords, but this is not the case anymore.

All of this means that a constitutional situation in which the separation of powers was blurred was revised by the Constitutional Reform Act of 2005. The historical mixture of legislative, judicial and executive power ran contrary to the requirements of Article 6 (paragraph 1) of the European Convention of Human Rights. A judicial officer having legislative or executive power is likely not to be considered sufficiently impartial to provide a fair trial.

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