The Constitutional Reform Act 2005 led to greater judicial independence: politicians and parliament must continue to support it

Posted on April 27, 2022 by The Constitution Unit

As part of an ongoing inquiry, the Lords Constitution Committee has sought evidence as to whether ‘the amendment of the role of the Lord Chancellor by the Constitutional Reform Act 2005 (CRA), and the resulting separation of powers between the judiciary and the Government, [have] been successful’. Robert Hazell argues that the 2005 reforms led to greater judicial independence, a political achievement that requires continuing support from politicians and parliament.

The House of Lords Constitution Committee is currently undertaking an inquiry into the role of the Lord Chancellor and the Law Officers, in which it seeks to answer a number of questions, including whether ‘the amendment of the role of the Lord Chancellor by the Constitutional Reform Act 2005 (CRA), and the resulting separation of powers between the judiciary and the Government, [have] been successful’. Through written evidence, submitted with Professor Kate Malleson, I have attempted to answer that question. Our answers were based upon the main findings and conclusions of a three-year research project on the Politics of Judicial Independence, funded by the AHRC. The research explored the impact of the greater separation of powers introduced by the Constitutional Reform Act 2005 (CRA). Our principal conclusion – as explained in our 2015 book on the subject – was that judicial independence and judicial accountability have emerged stronger, not weaker; but that greater separation of powers requires increased engagement by the judiciary with other branches of government.

The changes made by the Constitutional Reform Act 2005

Until 2005 the head of the judiciary was a Cabinet minister, the Lord Chancellor. In an extraordinary breach of separation of powers, he could also sit as a judge in the UK’s highest court. The CRA removed the Lord Chancellor as head of the judiciary, handing that responsibility to the Lord Chief Justice in line with an agreement struck in the Concordat of 2004. The division of powers between the executive and judiciary was further refined in 2008 in a Framework Document for the management of the Courts Service (revised and updated in 2011 to incorporate the Tribunals Service). The CRA also created a new Supreme Court, and established the Judicial Appointments Commission.

The new politics of judicial independence are more formal, fragmented, and politicised

The old politics were informal, depending on regular meetings between the Lord Chancellor and senior judges; closed, in that these were virtually the only contacts between the judiciary and the government; and secretive, with both sides preserving each other’s confidences. They were also consensual and conservative, in that neither side wanted to change the system. The ‘new’ politics, by contrast, are much more formal. The CRA required more formal structures and processes to handle the relationships between more separate branches of government. We now have the Judicial Appointments Commission, Judicial Appointments and Conduct Ombudsman, and Judicial Conduct Investigations Office: all products of the CRA. The new formal processes include regular meetings between the judiciary and other branches of government, with the innovation of six-monthly meetings between the LCJ and Prime Minister, the introduction of regular meetings with senior officials in parliament, and annual appearances by the LCJ and President of the Supreme Court before the Constitution Committee.

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What Kind of Democracy Do People Want: a discussion

Posted on March 3, 2022 by The Constitution Unit

Last month the Constitution Unit published What Kind of Democracy Do People Want?, the first report of its Democracy in the UK after Brexit project. To mark the report’s launch, a seminar was convened to discuss its findings, their implications, and possible future avenues of research. The project’s research assistant, James Cleaver, summarises the discussion.

What Kind of Democracy Do People Want?is the first of four reports from the Democracy in the UK after Brexit project. It is based on a UK-wide survey conducted in July 2021 in partnership with YouGov, with a sample size of almost 6,500 people who were representative of the UK’s voting age population.

A panel of three speakers was convened to discuss the report’s findings: Professor Alan Renwick, Deputy Director of the Constitution Unit, who is leading the Democracy in the UK after Brexit project; Paula Surridge, Senior Lecturer in Political Sociology at the University of Bristol and Deputy Director of UK in a Changing Europe; and James Johnson, founder of J.L. Partners and former Senior Opinion Research and Strategy Adviser to Prime Minister Theresa May. The event was chaired by Professor Meg Russell, Director of the Constitution Unit and a Co-Investigator on the Democracy in the UK after Brexit project. The summaries below are presented in order of the speakers’ contributions. You can watch the event here.

Alan Renwick

Alan Renwick outlined the structure of the research project and summarised the report’s key results. He focused on three overarching findings: while there exists broad satisfaction with democracy, people have very little trust in politicians; most members of the public want politicians who are honest, have integrity, and operate within the rules; and people generally prefer not to concentrate power in the hands of a few politicians, but rather to spread it to parliament, non-politicians, and the wider public. You can read more about the key findings of the report, and how they compare with other studies, in a recent post on this blog.

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Judges and select committees: A developing accountability culture

Posted on September 22, 2015 by The Constitution Unit

The specific scenario in which select committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. But Patrick O’Brien indicates that the research he conducted with Robert Hazell shows the practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement. What is more, it creates opportunities for dialogue and for judicial accountability.

When is a judge not a judge? Lady Justice Hallett carried out a public inquiry into the ‘On the runs’ scheme in 2014. In its report on the same issue in March 2015 the Commons Northern Ireland Affairs Select Committee commented rather sternly that

‘we chose not to summon Lady Justice Hallett to attend, but we consider it to be a regrettable discourtesy to Parliament that she declined our initial invitation to give evidence to the Committee, especially as she had not acted in a judicial capacity when carrying out her review‘. [at para. 11]

Is a judge who chairs an inquiry acting as a judge, or acting as an inquiry chair? Judges, concerned about the implications of being drawn into disputes that are often highly politically charged, tend to believe that they are acting as judges and that their reports should speak for themselves. Parliamentary committees can find this attitude defensive and frustrating. Several years ago the Commons Cultural, Media and Sport committee ran into a similar conflict with Lord Justice Leveson in relation to evidence he gave as chair of the inquiry into phone hacking.

The specific scenario in which committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. However, research I have done with Robert Hazell suggests that such ‘judge-led inquiry’ sessions, despite the problems that may attend them, make up only 5% of all evidence sessions these committees have with judges. The reality is that the vast majority of judicial evidence sessions are uncontroversial. The practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement by both judges and parliament.

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