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Modernising the constitution: completing the unfinished business

Published online by Cambridge University Press:  02 January 2018

K E Malleson
K E Malleson*
Affiliation:
London School of Economics
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Extract

Constitutional reform in the UK is usually pragmatic and piecemeal. Occasionally, however, comprehensive changes are proposed which are primarily driven by principle. The current proposals for constitutional change are a rare example of this type of reform. The abolition of the office of Lord Chancellor, the creation of a new Supreme Court and a Judicial Appointments Commission make up a package of measures intended to ‘redraw the relationship between the judiciary and the other branches of government’ and put it on a ‘modern footing’ by introducing a much clearer separation of powers between them.

Type
Research Article
Information
Legal Studies , Volume 24 , Issue 1-2 , March 2004 , pp. 119 - 133
Copyright
Copyright © Society of Legal Scholars 2004

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References

1. Brazier, R The machinery of British Constitutional reform’ (1990) 41 Google Scholar NILQ 227.

2. Department for Constitutional Affairs Constitutional reform: a Supreme Court for the United Kingdom CP11/03 (July 2003) para 1.

3. Department for Constitutional Affairs, n 2 above, para 5.4.3. Lord Bingham quoted in the consultation paper, said that the aim was to ensure that the Supreme Court is so structured as to ‘command the confidence of the country in the changed world in which we live’.

4. The Economist noted that ‘by embarking upon an ambitious programme of reform the government has encouraged scrutiny of the murkier corners of the constitution …’: ‘Judging the Judges’Economist, 23 Jan 1999.

5. See D Woodhouse The Office of Lord Chancellor (Oxford: Hart Publishing, 2001).

6. JUSTICE The Judiciary (1972). By 1992, however, when JUSTICE carried out a second review of the judiciary it noted that it was hard to see what the fuss has been about since many of those more radical arguments for reform made 20 years earlier were widely accepted as uncontroversial by the early 1990s having been regularly debated in the intervening years.

7. See J Rozenberg Trial of Strength (London: Richard Cohen Books, 1997).

8. The Labour Party Access to Justice (1995) p 13.

9. K Malleson and C Thomas Judicial Appointments Commissioners: The European and North American Experience and the Possible Implications for the UK Lord Chancellor's Department Research Series No 6/97 December 1997 pp 50–73.

10. A Le Sueur and R Comes The Future of the United Kingdom's Highest Courts (London: The Constitution Unit, 2001) para 5.2.1.

11. See A House for the Future (Cm 4534, 2000).

12. R Stevens The English Judges: Their Role in the Changing Constitution (Oxford: Hart Publishing, 2002) p 124.

13. Stevens, n 12 above, p 104.

14. Le Sueur and Comes accurately predicted that the changes would speed the need for reform of the top courts: n 12 above, para 5.4.1. Woodhouse similarly anticipated the same effect in relation to the office of Lord Chancellor: n 5 above, p 631.

15. Lord Chancellor's Department Select Committee, minutes of evidence, 2 April 2003.

16. Le Sueur and Cornes, n 12 above, para 5.3.1. See also ‘Irvine “fought against Blair's legal reforms”’Independent on Sunday, 15 June 2003.

17. Under Lord Irvine the Lord Chancellor's Department had expanded dramatically. In 2003 Blunkett successfully resisted any further transfer of functions which would have continued the effective creation of a continental-style ministry of justice.

18. The Scottish First Minister, for example, publicly expressed his anger at not having been consulted about changes. See also Lord Alexander ‘Is this a ruthless grab for power?’The Times, 1 July 2003.

19. Lord Mackay ‘The Chancellor in the 1990s’ (1991) Current Legal Problems 258.

20. Hansard, HL Official Report (5th series) col 1254, 5 June 1996.

21. Woolf, Lord Judicial Review: The Tensions between the Executive and the Judiciary’ (1998) 114 Google Scholar LQR 114.

22. ‘The case for a Supreme Court’ (2002) 118 LQR at 384.

23. Steyn, above n 22, at 388.

24. Evidence to the Lord Chancellor's Department select committee, 2 April 2003, qu 28.

25. Lord Chancellor's Department Select Committee, minutes of evidence, 30 June 2003.

26. Above n 24, para 2.

27. Woodhouse, n 5 above, p 624; R Stevens The English Judges, their Role in the Changing Constitution (Oxford: Hart Publishing, 2002) p 101.

28. D Woodhouse ‘The Office of Lord Chancellor’ [1998] PL 619.

29. Steyn, above n 22, at pp 387–388.

30. ‘Judges Attack Blunkett on Asylum Rules’, Independent, 11 June 2003.

31. See K Malleson The New Judiciary (Aldershot: Ashgate Press, 1999).

32. See S Sedley, Foreword to Malleson n 31 above and C Geary ‘The Judicialisation of Democracy’, paper delivered to the Administrative Bar Association, 7 July 1996.

32. The judicial function of the House of Lords written evidence to the Royal Commission on the Reform of the House of Lords (1998) para 21.

33. Gearty, 1996, p 3.

34. Report of the Bar Council working party on judicial appointments and silk (3 March 2003) Summary of recommendations, chapter 10.

35. Lord Chancellor's Department Select Committee, minutes of evidence, 15 July 2003.

36. Lord Saville commented that the dividing line between what was political and not politically controversial in determining whether he could speak in the Lords or not was ‘very difficult to draw and clearly getting more and more difficult to draw’: speech to the City Centre for International Trade and Arbitration (January 1999) quoted in Stevens p 111.

37. Stevens, n 12 above, p 121.

38. See Le Sueur and Cornes, n 10 above, para 14.4.1.

39. McGonnell v United Kingdom (2000) 30 EHRR.

40. See Le Sueur and Cornes, n 10 above, p 54.

41. See Woodhouse, n 5 above, p 127.

42. See Le Sueur and Cornes, n 10 above, para 5.4.3.

43. Starrs v Ruxton 2000 SLT 42.

44. See Steyn, n 22 above, at p 127.

45. Lord Chancellor's Department Select Committee, minutes of evidence, 27 March 2003. Erik Jurgens is the Rapporteur of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly, Council of Europe.

46. Above, n 45, para 1.

47. Lord Chancellor's Department Select Committee, minutes of evidence, 30 June 2003, qu 55.

48. Above, n 47, qu 36.

49. Lord Chancellor's Department Select Committee, minutes of evidence, 2 April 2003, qu 29.

50. Above, n 49.

51. See Lord Woolf s comments on the resuscitation of the Judges' Council from being a ‘semi-moribund institution’: see Current Challenges in Judging 5th Worldwide Common Law Judiciary Conference, Sydney, Australia, 10 April 2003: http://www.lcd.gov.uk/judicial/speeches/lcj100403.htm.

52. N Browne-Wilkinson ‘The Independence of the Judiciary in the 1980s’ [1988] PL 44.

53. An example being that the Supreme Court consultation paper proposes that funding of the top courts should be transferred from the Lords and Privy Council to the Department for Constitutional Affairs which would ‘bid for and provide resources’: Department for Constitutional Affairs, n 2 above, paras 63–66.

54. R Stevens ‘Government and the Judiciary’ in V Bogdanor (ed) The British Constitution in the Twentieth Century (Oxford: Oxford University Press, 2003).