The House of Lords Constitution Committee in its 6th Report, published 11 July 2007 (referred to in class) examined the changing constitutional landscape in great detail (“the Report”). The criteria used in the Report for assessing the changing constitutional landscape are the rule of law and the independence of the judiciary. The introduction to the Report provides a useful summary of these points, together with questions regarding the impact of the Constitutional Reform Act 2005 and the creation of the Ministry of Justice on the UK’s constitutional arrangements.

The link below provides further links to the introduction and all sections of the Report. You might also find useful the appendices, which include papers from eminent professors  (including Professor Bradley), in particular, appendices 3-5; and evidence submitted by the Lord Chief Justice at appendix 8.

http://www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15102.htm

http://www.thelawyer.com/cgi-bin/item.cgi?id=128615  

The Lord Chief Justice Lord Phillips has called on the government to stay away from the selection of judges in the wake of ‘The Governance of Britain’ green paper published by the Ministry of Justice. Phillips claims that the Blair administration’s shake-up of the justice system had important implications for the independence of the judiciary.  

This ties into public law and the issue of keeping judges/judicial system as a unbiased third party that should interpret statues and Acts of Parliaments as they see fit. This occurs when ambiguity exists in certain statutes. The Rule of Law, as we have seen, claims that no governmental figure shall be above the law. Keeping judges as unbiased mediators of the law helps this – Dicey claimed ‘equality before the law – equal subjection of all classes to the ordinary law.’ It is vital that the courts serve as an unbiased body independent of the legislature which made the law, and that they act independently of the executive in interpreting the meaning of laws.

Phillips came out explicitly against any suggestion of electing judges, putting himself in opposition to the green paper published by the MoJ this year.  I’m only aware of one Commonwealth country where parliament is involved in judicial appointments, and that is Mozambique. I, for one, can see no need for such an innovation in the UK.” 

Also touches on separation of power (particularly question 5 of tutorial – sep of power )

By Tariq Teja 

The Times- 22^nd October 

http://business.timesonline.co.uk/tol/business/law/article2709537.ece

“High drama of appeals at new Supreme Court may go out on television” 

The Supreme Court:

Under the Constitutional Reform Act 2005, the Supreme Court is being created, ending the Lord Chancellor’s position as being the head of the judiciary and the role of the House of Lords as being the highest court in England. The 12 law lords, headed by Lord Bingham of Cornhill, are to become the first justices of the supreme court which is scheduled to open in October 2009 in Parliament Square.

The Court will:

— Hear appeals on arguable points of law of general public importance

— Act as the final court of appeal in England, Wales and Northern Ireland

— Hear appeals from civil cases in England, Wales, Northern Ireland and Scotland and criminal cases in England, Wales and Northern Ireland

— Assume the devolution jurisdiction of the Judicial Committee of the Privy Council. The Commonwealth jurisdiction of the council will remain unchanged.

The current law lords (Lords of Appeal in Ordinary) will remain as members of the House of Lords when the supreme court opens. However new appointees, who will be selected by a new commission, will not be members of the Lords.

Latest news:

Cameras will be allowed to broadcast high-profile hearings, such as the legality of detaining terror suspects without trial, before the new supreme court on television. Judges say that Jack Straw, the Justice Secretary, is keen to permit cameras into the court as part of the aim to make it more transparent. But Straw has indicated to judges that he does not favour allowing cameras into jury trials. Judges widely oppose it because they perceive it as a step towards American-style justice that could damage the nature of court proceedings. Mr Straw has told judges that he wants to proceed but only with their full support. Senior judges are said to be in favour of the plan. (Source: Department for Constitutional Affairs)

Summary by Abirami Ragukaran and Sonum Bagha

On 25 October 2007, Gordon Brown set out his plans to write the next chapter in the story of British civil liberties and pledged his commitment to a British Bill of Rights in a speech at the University of Westminister.

Mr Brown said that the British Bill of Rights would “entrench and enhance” individual freedoms.  Yet on the other hand, the Prime Minister stated that the bill would set out the responsibilities “that flow from British citizenship”.  He did not rule out controversial plans for ID cards nor the extension of the holding of terrorist suspects beyond 28 days but said that the latter would be subject to scrutiny.

See a summary of the meaning of a written constitution in the UK – as well as links to a summary of the Prime Minister’s speech on liberty and other documents at:

http://www.politics.co.uk/issue-briefs/domestic-policy/constitution/written-constitution/written-constitution-$366652.htm

This follows the publication on 3 July 07 of the Green Paper, “The Governance of Britain”. Gordon Brown said that the Green Paper sets out for  “a new British constitutional settlement that entrusts more power to parliament and the British people”. This “routemap” (rather than a “final blueprint”) concerns the shifting of power from the executive to Parliament ( for example through limits on the exercise of prerogative powers such as the declaration of war), and reform of public appointments and the role of the Attorney General etc.

See summary at:

http://politics.guardian.co.uk/constitution/story/0,,2117920,00.html

Governance of Britain Green Paper can be found at:

http://www.official-documents.gov.uk/document/cm71/7170/7170.pdf

 Related documents on Ministry of Justice Website:

http://www.justice.gov.uk/publications/governanceofbritain.htm

Supreme Court for the UK 

 “The Constitutional Reform Act 2005 made provision for the creation of a new Supreme Court for the United Kingdom. There have, in recent years, been mounting calls for the creation of a new free standing Supreme Court separating the highest appeal court from the second house of Parliament, and removing the Lords of Appeal in Ordinary from the legislature. On 12 June 2003 the Government announced its intention to do so.

At present the most senior judges, the Lords of Appeal in Ordinary, or Law Lords as they are often called, sit in the House of Lords. There are twelve of them. The House is the highest court in the land – the supreme court of appeal. It acts as the final court on points of law for the whole of the United Kingdom in civil cases and for England, Wales and Northern Ireland in criminal cases. Its decisions bind all courts below.

As members of the House of Lords, this means that they not only sit judicially, but are also able to become involved in the debate and subsequent enactment of Government legislation (although, in practice, they rarely do so). Creating a new Supreme Court will mean that the most senior judges will be entirely separate from the Parliamentary process.

It is important to be aware that the new Supreme Court will be a United Kingdom body legally separate from the England and Wales Courts since it will also be the Supreme Court of both Scotland and Northern Ireland. As such it falls outside of the remit of the Lord Chief Justice of England and Wales in his role as head of the judiciary of England and Wales.

The new Supreme Court is scheduled to be open for business in October 2009.”http://www.judiciary.gov.uk/about_judiciary/judges_and_the_constitution/supreme_court/index.htm

The judicial work of the current House of Lords will be transferred to the Supreme Court for the UK in 2006, following the enactment of the Constitutional Reform Act 2005. See a survey of their current judicial work:

http://www.parliament.uk/documents/upload/HofLBpJudicial.pdf  

The DCA provide a very brief summary of the background, roles and responsibilities of the Supreme Court for the UK on their website:

http://www.dca.gov.uk/supreme/index.htm This draws from their Consultation Document published in July 2003 (Read their executive summary as a timesaving device). http://www.dca.gov.uk/consult/supremecourt/index.htm Summary of Government’s response of July 2004:http://www.dca.gov.uk/consult/supremecourt/scresp.htm 

The existing Law Lords will become the first Justices of the Supreme Court in 2009. A list of the current Law Lords is found at:

http://www.parliament.uk/about_lords/the_law_lords.cfm  

The Lord Chancellor

 As a result of the Constitutional Reform Act 2005, the judicial role of the Lord Chancellor has been abolished. As of 3 April 2006, the Lord Chancellor’s judicial functions were transferred to the President of the Courts of England and Wales – the Lord Chief Justice, Lord Phillips – who is now the Head of the Judiciary. [Important Note: the Lord Chief Justice for England and Wales does not fall within the remit of the House of Lords – this being UK-wide.]. A summary of the key reforms can be found at: http://www.judiciary.gov.uk/about_judiciary/judges_and_the_constitution/constitutional_reform/index.htm 

The Judicial Appointments Commission (JAC)

  As we know, the Constitutional Reform Act enshrined judicial independence in statute (s 3 guarantee).  The JAC was established under s61 CRA 2005 – its aim being to increase the independence of the judiciary. 

From October 2006, the JAC implemented a new system for selecting judges. The framework document signed by Lord Falconer and Baroness Prashar (Lord Chancellor and Chairman of the JAC respectively) states that it is an executive non-departmental public body which possesses the following role [at paras 13 and 14]:

“ The Commission selects candidates for judicial office and recommends them to the Lord Chancellor for appointment. It is the Lord Chancellor who, in accordance with the provisions of the Act, makes the appointments or recommends the appointments to The Queen. 

The JAC is responsible for selections in relation to all judicial offices listed in Schedule 14 to the Act, as well as to the offices of the Lord Chief Justice, Heads of Division, Lords Justices of Appeal and High Court Judges. In the first year of operation some of the appointments are subject to transitional arrangements.”

Full transcript of the framework document: http://www.judicialappointments.gov.uk/docs/jac_framework_document.pdf  

Summary in press release: http://www.judicialappointments.gov.uk/press_release_high_ct_judges_311006.htm 

The JAC Chairman Baroness Prashar delivered a very clear and concise lecture on the reforms and the current role of the JAC on 6 November 2006 at Middle Temple.http://www.judicialappointments.gov.uk/docs/Middle_Temple_Guest_Lecture.pdf