The Constitutional Reform Act 2005 (c. 4) is an Act of the

Parliament of the United Kingdom The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body of the United Kingdom, and may also legislate for the Crown Dependencies and the British Overseas Territories. It meets at the Palace ...

, relevant to

UK constitutional law The United Kingdom constitutional law concerns the governance of the United Kingdom of Great Britain and Northern Ireland. With the oldest continuous political system on Earth, the British constitution is not contained in a single code but princ ...

. It provides for a

Supreme Court of the United Kingdom The Supreme Court of the United Kingdom (initialism: UKSC) is the final court of appeal for all civil cases in the United Kingdom and all criminal cases originating in England, Wales and Northern Ireland, as well as some limited criminal cases ...

to take over the previous appellate jurisdiction of the

Law Lords Lords of Appeal in Ordinary, commonly known as Law Lords, were judges appointed under the Appellate Jurisdiction Act 1876 to the British House of Lords, as a committee of the House, effectively to exercise the judicial functions of the House of ...

as well as some powers of the

Judicial Committee of the Privy Council The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 August ...

, and removed the functions of

Speaker Speaker most commonly refers to: * Speaker, a person who produces speech * Loudspeaker, a device that produces sound ** Computer speakers Speaker, Speakers, or The Speaker may also refer to: Arts and entertainment * "Speaker" (song), by David ...

of the

House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...

and Head of the

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 o ...

from the office of

Lord Chancellor The Lord Chancellor, formally titled Lord High Chancellor of Great Britain, is a senior minister of the Crown within the Government of the United Kingdom. The lord chancellor is the minister of justice for England and Wales and the highest-ra ...

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, an arrangement that ran contrary to the idea of

separation of powers The separation of powers principle functionally differentiates several types of state (polity), state power (usually Legislature#Legislation, law-making, adjudication, and Executive (government)#Function, execution) and requires these operat ...

. The reform was motivated by concerns that the historical mixture of legislative, judicial, and executive power might not conform with the requirements of Article 6 (paragraph 1) of the

European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is a Supranational law, supranational convention to protect human rights and political freedoms in Europe. Draf ...

, because a judicial officer who has legislative or executive power is likely not to be considered sufficiently impartial to provide a fair trial. This act ensures that the powers of the Lord Chancellor and the Secretary of State for Justice have limitations on their abilities over the president of the court.

Legislative history

The bill was originally introduced in the

on 24 February 2004 and proposed the following changes: *Abolition of the office of "Lord High Chancellor of Great Britain", generally known as the

. *Setting up of a "

" and moving the

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 The Lord or Lady Chief Justice of England and Wales is the head of the judiciary of England and Wales and the president of the courts of England and Wales. Until 2005 the lord chief justice was the second-most senior judge of the English a ...

and changes to the

. The

bill Bill(s) may refer to: Common meanings * Banknote, paper cash (especially in the United States) * Bill (law), a proposed law put before a legislature * Invoice, commercial document issued by a seller to a buyer * Bill, a bird or animal's beak Pl ...

caused much controversy and the Lords made amendments to it. The most significant of these was the decision not to abolish the position of Lord Chancellor, as, unlike other Secretaries of State in the UK Government, a number of the Lord Chancellor's functions are explicitly defined in law, and transferring these functions to other individuals would have required further legislation. However, although the post was retained, its role in relation to the judiciary is greatly reduced and the office holder is no longer automatically Speaker of the House of Lords because of the Government's announced intention to appoint Lord Chancellors from the

House of Commons The House of Commons is the name for the elected lower house of the Bicameralism, bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of ...

. Other measures remained generally the same as stated above. The newly created

Cabinet Cabinet or The Cabinet may refer to: Furniture * Cabinetry, a box-shaped piece of furniture with doors and/or drawers * Display cabinet, a piece of furniture with one or more transparent glass sheets or transparent polycarbonate sheets * Filin ...

position of

Secretary of State for Constitutional Affairs The secretary of state for constitutional affairs was a secretary of state in the Government of the United Kingdom, with overall responsibility for the business of the Department for Constitutional Affairs. The position existed from 2003 to 200 ...

(originally created to wholly replace the Lord Chancellor's executive function) continued, although the holder of that Cabinet post—renamed

Secretary of State for Justice The secretary of state for justice is a secretary of state in the Government of the United Kingdom, with responsibility for the Ministry of Justice. The incumbent is a member of the Cabinet of the United Kingdom. Since the office's inception ...

in 2007—currently also holds the office of Lord Chancellor. The Lord Chancellor remains the custodian of the

Great Seal A great seal is a seal used by a head of state, or someone authorised to do so on their behalf, to confirm formal documents, such as laws, treaties, appointments and letters of dispatch. It was and is used as a guarantee of the authenticity of ...

(the bill as originally written put this into commission). The bill was approved by both Houses on 21 March 2005, and received

Royal Assent Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in othe ...

on 24 March.

Changes resulting from the act

The act contains provisions which reform two institutions and one former office of the United Kingdom. The document is divided into three parts: the first concerns the reform of the office of Lord Chancellor, the second creates and sets the framework for a Supreme Court, and the third regulates the appointment of judges.

Role of the Lord Chancellor

Under the new legislation, the role of the Lord Chancellor was redefined. Rather than being the head of the Judiciary in

England and Wales England and Wales () is one of the Law of the United Kingdom#Legal jurisdictions, three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. Th ...

, the role of the Lord Chancellor was changed to managing the judiciary system including the Supreme Court, county courts,

magistrates' courts A magistrates' court is a lower court where, in several jurisdictions, all criminal proceedings start. Also some civil matters may be dealt with here, such as family proceedings. Courts * Magistrates' court (England and Wales) * Magistrates' court ...

, and coroners' courts. In carrying out this duty, the Lord Chancellor is required to address both houses of Parliament and deliver a report as to how he or she has managed the Judiciary system. The

replaces the Lord Chancellor as head of the English and Welsh judiciary and is also responsible for representing the views of the judiciary to the Lord Chancellor and Parliament as a whole. The law also set out an oath of office for the Lord Chancellor to take. the Oath being: "I, (name), 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."

Supreme Court

The establishment of a 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 be composed of 12 judges (s. 23) and that the first judges be the then-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. Section 11 of the Supreme Court Act 1981, amended by The Judicial Pensions and Retirement Act 1993, requires Justices of the Supreme Court to retire at age 70. Justices are appointed by the Monarch on the recommendation of the Prime Minister. On a death, or deselection approved by both houses, its selection commission consisting of the President and Deputy President of the Supreme Court (schedule 8) proposes one name to the Lord Chancellor who may reject a name only once per vacancy (since amended to

), having a single veto. 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 40 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). Although the Appellate Committee of the House of Lords is abolished, the 2005–06 serving Law Lords kept their judicial office in the new Supreme Court. Newly appointed members of the Court take no peerage, instead bearing the formal title Justice of the Supreme Court. Under the act such judges also have a courtesy title of Lord or Lady, for the expressed purpose of ensuring there is no perceived hierarchy among the JSCs. The new Supreme Court sits in a separate building from the Houses of Parliament where the mentioned predecessor judicial committee (of the House of Lords) formerly acted as the UK's final court of appeal. After a lengthy survey of suitable sites, including Somerset House, Parliament and the former Lord Chancellor's Department agreed to the Court's installation in

Middlesex Guildhall The Middlesex Guildhall is a historic court building in Westminster which now houses the Supreme Court of the United Kingdom and the Judicial Committee of the Privy Council. The building stands on the south-western corner of Parliament Square, ...

in Parliament Square, formerly a Crown Court building. Architect Lord Foster was chosen to design the necessary alterations. The building reopened as the Supreme Court on 1 October 2009.

Appointment of judges

The third part of the act is about the appointment of judges. In 1991 the Law Society had criticized the old system (the Monarch 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 prescribed the creation of the

Judicial Appointments Commission The Judicial Appointments Commission (JAC) is an independent commission that selects candidates for judicial office in courts and tribunals in England and Wales and for some tribunals whose jurisdiction extends to Scotland or Northern Ireland. ...

, responsible for the appointment of judges for English and Welsh courts. The following sections regulate the structure and the procedures of the Commission. There are several criteria set out by the law in order for a person to become eligible to sit on the

Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...

. These are: * held high judicial office for a period of at least 2 years, * been a qualifying practitioner for a period of at least 15 years, * satisfied the judicial-appointment eligibility condition on a 15-year basis, or * been a qualifying practitioner for a period of at least 15 years.

References

{{Reflist

External links

House of Commons Reports on Bills January 2005
Scroll halfway down the page for this bill's two reports.

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
United Kingdom Acts of Parliament 2005 Government of the United Kingdom Constitutional laws of the United Kingdom Acts of the Parliament of the United Kingdom concerning the House of Lords Courts of the United Kingdom Courts of England and Wales Judicial Committee of the Privy Council Supreme Court of the United Kingdom Reform in the United Kingdom