Constitutional Reform Essay

In July 2003, the government launched a raft of reform proposals as part of their 'continuing drive to modernise the constitution and the legal system for the purposes of making it more relevant and effective for today's world1'. The proposals attracted immediate criticism. They were attacked for displaying 'breathtaking arrogance'2, a 'hostility to history'3 and of constituting less substance than spin4. There is truth in such criticism; but this truth strengthens, rather than weakens, the case for reform.

Ensuring that the judicial system is seen as both legitimate and fair must be the first priority of the justice system today. The courts provide the strongest check against a Parliament tempted to override accepted notions of human rights and the Rule of Law. Because Parliament is sovereign, it can pass any law it chooses, overruling any judgment made by the courts. The Human Rights Act 1998 has done little to alter this position; judges can only issue a declaration of incompatibility – they cannot strike down legislation.

Thus if judges are to have any impact on restraining the actions of Parliament, their judgments must be seen as legitimate. In impacting directly on this legitimacy, the proposals can only benefit the justice system. The proposal that attracted the most headlines was the abolition of the Lord Chancellor's office. An historical anomaly that breached the principle of separation of powers, the position was both obsolete and unsustainable. The curtailment of all the monarchy's real power eroded any need for this position, and growing criticism made its abolition expedient.

The problems it attracted were acutely illustrated when Lord MacKay, as Lord Chancellor, visited the European Court of Human Rights in Strasbourg in 1996, ostensibly to persuade the court to change its procedures. When a favourable judgement from the ECHR on an unrelated case was delivered hours before his arrival, suspicion grew over the role Lord MacKay had had in the judgement5. To challenge the position of Lord Chancellor, it need not be argued that Lord MacKay did play such a role; it is the fact that this was suspected that is so damning.

In any event, the 2000 McGonnell6 ruling of the European Court of Human Rights placed the position of Lord Chancellor on a questionable legal footing, and thereby further undermined faith in the British justice system. The abolition of this role is an essential component of the attempt to bring legitimacy to the justice system. Equally desirable are the proposals for the Supreme Court. By removing the most senior judges from the House of Lords, the new Court offers a way to end mounting criticism of the overlap between the legislature and the judiciary.

It is true that this overlap has had little material significance in recent years; Law Lords increasingly have refrained from voting on issues likely to come before them in their capacity as judges. However, the fact that reality does not match suspicion is no reason to preserve the status quo: better to end controversy on the matter altogether. The creation of the proposed Supreme Court is a necessary and obvious way to end such suspicion in one sweep. The proposals for the judicial appointments system are critical to the delivery of faith in the justice system.

For most appointments, vetoing will be the only discretion the ministers will have7, reducing the scope for executive manipulation and for accusations of corruption. Protection against the abuse of this power can be achieved through scrutinising the frequency with which the minister exercises this veto. The proposed ministerial discretion strikes the right balance between political accountability and judicial independence, injecting legitimacy into the appointment process. Including laymen in the appointments process further enhances the judiciary's legitimacy.

The narrow social profile of the judiciary currently gives accusations of nepotism credibility; increasing the diversity of those who make the appointments mitigates this perception. In addressing the way the judicial appointments process is perceived, judicial decisions will attract greater authority and respect. Nor can it be said that any increase in diversity will detract from appointment on merit; this is to take a narrow and outdated stance on the necessary attributes of an effective judge.

Under the traditional conception of the English legal system, the capacity of the judiciary to deliver justice is defined by the will of Parliament; judges interpret rather than formulate policy. As such, the best judge is the one who can best identify the correct interpretation. However, the distinction between policy and interpretation has never been as strict as this conception suggests, and it has been narrowed further by the Human Rights Act 1998.

For example, the traditional 'Wednesbury reasonableness' test in cases of judicial review has been replaced by 'proportionality', requiring judges to justify their decisions in terms of the 'necessary qualities of a democratic society8'. When such decisions are made, it is crucial that a broad spectrum of society has an input. Otherwise the judgements risk reflecting only one perception of these 'necessary qualities', and will certainly be seen to do so. Thus the government's attempt to broaden the diversity of the judiciary not only achieves more positive perceptions of the judiciary, but also improves its performance.

The proposals for constitutional reform represent a necessary and welcome attempt to address public suspicion over the British justice system. The reforms will separate the judicial and legislative spheres, and will enhance the legitimacy of judges. The resulting increase in judicial authority will provide a robust defence against any Parliamentary attempt to override human rights or the Rule of Law. Therefore, rather than representing the usurpation of substance by spin, these reforms represent the victory of substance through spin.