Constitutional Reform Act 2005: Origins, Provisions, and Consequences, Study notes of Political Science

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Constitutional Reform Act 2005

and its Consequences

Professor Robert Hazell

Constitution Unit, Dept of Political Science, UCL

Statute Law Society Conference

15 November 2013

Origins of CRA 2005: the Concordat^ •

Attempted abolition of LC shocked the judges

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Lord Woolf stays in office to negotiate Concordatwith Lord Falconer

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Concordat is detailed White Paper forConstitutional Reform Bill

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CR Bill referred to Select Cttee in House of Lords

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LC is saved, rest of bill largely unamended

Changes to Judicial Appointments in Crimeand Courts Act 2013 •^

Detailed rules moved to regulations made by LordChancellor – CRA now provides skeleton rules

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Appointments below HC level now made by LCJ

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Appointments to tribunals now made by SPT

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Senior judges no longer permitted to participate inprocess to select their successors

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Fractional working arrangements introduced for HC,CA and UKSC

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Diversity-based ‘tipping point’ may now be appliedwhere two candidates are of equal merit

Some other changes in CCA 2013 •^

Single County Court and single Family Court

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Court judges can sit in tribunals and vice versa

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Immigration and nationality judicial reviews can betransferred from High Court to Upper Tribunal

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Court proceedings can be televised

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Offence of Scandalising the judiciary abolished

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Implementation of the Leveson Report framework

Old Politics under the old Lord Chancellor •^

Informal

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Closed

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Secretive

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Conservative

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Stable

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New politics are different in every respect

New Politics are more Formal •^

More formal structures: JAC, JACO, OJC/JCIO

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More formal processes: Concordat. FrameworkDocuments 2008 and 2011 for Courts Service

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Formal recruitment processes for judiciary,advertisement and open competition

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Regular meetings between LCJ/LC, LCJ/PM,LCJ/Lords Constitution Committee

New Politics are more politicised •^

Tensions come out in the open

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Ld Phillips frustrated at failure of DCA to discussbudget of Courts Service inj 2007

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Ld Phillips complained about budget of SupremeCourt in 2011

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Chris Grayling wanted to ‘draw blood’ over judicialpensions

Judicial Independence has become stronger •^

Judges still in mourning for the old LC, their voicein Cabinet

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But judiciary are institutionally more independentof the executive, and the legislature

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Have greater autonomy and responsibility forrunning judicial system, and the courts

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Multiple guardians of judicial independenceinstead of single LC

Judicial Appointments are much moreindependent •^

Judicial appointments were sole responsibility ofLC

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Now managed by independent JudicialAppointments Commission

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LC has limited power of veto or reference back

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JAC heavily influenced by the judiciary

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JAC too independent, insufficiently accountable?

New Supreme Court is more independent •^

No longer hidden in the House of Lords

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Cramped accommodation, restrictive procedures

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Transformed website. Proceedings televised

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More Judicial Assistants

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Capacity to sit in panels of seven or nine

Why do judges feel matters are worse? •^

LC is non lawyer, mid career politician

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Economic crisis of 2007

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20 per cent cuts in Courts funding, more to come

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Freeze on judicial salaries

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Reductions in judicial pensions

Judiciary has also become more accountable •^

Wider transparency initiatives in government applyalso to judiciary

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Annual reports of HMCTS, UKSC, SPT, JAC,JACO, OJC

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Periodic reviews from LCJ. Patchy reporting fromdifferent parts of courts system

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Frequent appearances before parliamentarycommittees