The Constitutional Reform Act 2005

Introduction

The Constitutional Reform Act 2005 (CRA 2005) was one of the most significant constitutional reforms in UK history. The Act: created the Supreme Court of the United Kingdom, replacing the Appellate Committee of the House of Lords; reformed the office of Lord Chancellor; established the Judicial Appointments Commission; and affirmed the constitutional principle of judicial independence. The Act gave effect to the constitutional principle of the separation of powers by separating the judiciary from the legislature and the executive.

The Supreme Court of the United Kingdom

Part 2 of the CRA 2005 (sections 23–60) established the Supreme Court as a separate institution from Parliament, physically located at Middlesex Guildhall on Parliament Square. The Court consists of 12 judges (Justices of the Supreme Court), appointed by the monarch on the Prime Minister’s recommendation from a selection commission convened by the Lord Chancellor. The first President of the Supreme Court was Lord Phillips of Worth Matravers (2009). The Court assumed the appellate jurisdiction of the House of Lords — hearing appeals from the Court of Appeal of England and Wales, the Court of Session (Scotland), and the Court of Appeal in Northern Ireland — and the devolution jurisdiction of the Judicial Committee of the Privy Council. The creation of the Supreme Court completed the physical and institutional separation of the judiciary from the legislature.

Reform of the Lord Chancellor

Part 1 of the CRA 2005 reformed the historic office of Lord Chancellor, which previously combined judicial, executive, and legislative functions. The Lord Chancellor was simultaneously head of the judiciary, a Cabinet minister, Speaker of the House of Lords, and a senior judge sitting in the Appellate Committee. The Act removed the Lord Chancellor’s judicial functions, transferred the Speaker role to a Lord Speaker elected by the House, and limited the office to an executive role as a Cabinet minister responsible for the justice system. The Act also amended the qualifications for appointment (section 2) and imposed a duty on the Lord Chancellor to protect the independence of the judiciary (section 3).

The Judicial Appointments Commission

Part 4 of the CRA 2005 (sections 61–108) established the Judicial Appointments Commission (JAC) for England and Wales, an independent non-departmental public body responsible for selecting candidates for judicial office. The JAC replaced the previous system of secret consultation (the “soundings” system) with transparent, merit-based selection. The Commission consists of 15 members: 5 judges, 2 lawyers, 5 lay members, 1 tribunal member, 1 justice of the peace, and 1 judicial office holder. Candidates are assessed against specified competencies — legal knowledge, intellectual ability, personal qualities, and an ability to understand and deal fairly — and recommended to the Lord Chancellor, who may accept, reject (once only), or ask for reconsideration.

Judicial Independence

Section 3 of the CRA 2005 requires the Lord Chancellor, other ministers, and all with responsibility for judicial administration to “uphold the continued independence of the judiciary.” Section 3(1) specifically prohibits ministers from attempting to influence judicial decisions through special access. Section 3(5) requires the Lord Chancellor to have regard to the need to defend judicial independence, the need for the judiciary to have the support necessary to exercise their functions, and the need for public interest in proper judicial administration. The Act also protects judicial salaries (section 14) and restricts the removal of High Court and Court of Appeal judges.