Constitutional Reform Paper Example

The overriding aim of constitutional reform is justice for the wo/man on the street. Without access and representation in an adequate, transparent, impartial and politically insulated judiciary, individual access to justice may be denied. The civil justice system in the United Kingdom is based on the precedent of common law rather than the Code Napoleon of other European countries. The British constitution is unwritten and not entrenched. In many ways, this has made it extremely admirable and successful.

"Hernando de Soto (1989) has commented on how the nature of private property had first been enunciated properly by the British, and how civil institutions were soon to follow. " However, the current system has developed internal complexities and irregularities, which make it unintelligible, inaccessible and unrepresentative to the wo/man on the street. For centuries, only the nature of legislation has genuinely changed. The perception is that judges in their silk and/or dark robes are too far removed from the people.

Many regard the justice system as expensive, slow, and restrictive. Like ancient scribes, lawyers must still interpret law for the rest of society. This is not only costly to the majority of society, but also places barriers to entry of justice in an ostensibly democratic and egalitarian society. The general consensus that the justice system in the UK must be improved to meet the demands of a rapidly changing environment led the Lord Chancellor to commission the Woolf Report, "Access to Justice" in 1994.

The Final Report (1996) which evolved to the Civil Procedure Act (1997), the Civil Procedure Rules (1999) and the Access to Justice Act (1999) set out a number of problems with the existing civil justice system and substantially modified the way that civil actions were processed. "Although, the Lord Woolf reforms have clearly restrained the adversarial manner in which lawyers perform litigation, and reduced the number of claims issued in the high court, Jacqueline Martin (2002) observes that there is still some concern over the efficiency in court procedures and cost-effectiveness of litigation.

" The need to consolidate and modernize the existing body of law so that it is clear, coherent and up-to-date is also recognized by the office of the Lord Chancellor. In many respects, re-vamping the civil justice system would entail standardization and modernization. The process would involve giving judges new case management responsibilities, redrafting procedural rules and using modern information technology to integrate the civil and criminal justice system.

The criminal justice White Paper, "Justice for All" which translated into the Criminal Justice Bill, proposed that constitutional reform of the justice system would "rebalance the criminal justice system in favor of the victims, witnesses and community and deliver justice for all, by building greater trust and credibility. " What bearing does constitutional reform have on the justice system? If anything, some think it may stands to complicate the system rather than to simplify it.

The appeals process implied by a Euro-wide legal system seems to defeats Lord Woolf's brave conceptualization of a streamlined and efficient legal system. Others think that rigid reforms may lead to perceived injustice, for example, the intention to withhold trial by jury to more complex cases can amount to interference with the right to a fair trial and due process. Also, it is argued that private dispute resolution has already begun to adopt independent arbitration as an expedient, straight-forward alternative to the court system. Such systems have already begun to benefit private international firms.

The question is how soon such a system will take to benefit small claims. Ultimately, expediting law and making it less expensive to pursue a legal recourse for dispute resolution is, ironically, a time-consuming process and very costly. Hopefully, methods of private dispute resolution will become standardized so that these intuitive, cogent processes are available to everyone. Already the Department of Constitutional Affairs is refocusing the provision of legal services to answer needs of individuals seeking redress without recourse to the courts.

Cownie and Bradney (2000) note that, "If the English legal system is considered in isolation of its context the scope of potential reforms tends to be reduced. " Therefore, it is important to consider the larger context. The former Lord Chancellor, Lord Mackay, in his "Administration of Justice" (1994), highlighted other alternatives which he believed "raises issues… and challenges some traditional assumptions about the way in which justice must be administered. " In this regard, abolishing of the Lord Chancellor and replacing the House of Lords with a Supreme Court is welcomed.

The historical position of the Lord Chancellor is unsustainable in a just society. Sitting as both a judge and a cabinet minister has led to concerns of conflict of interest and partisanship. Law Lords are judges not legislators and should not pervert the true intention of parliament. The role of the court is to protect people from arbitrary governmental power and control. Additionally, the increase in judicial review cases and the impact of the Human Rights Act have increased awareness for the need to separate the legislature and judiciary. This will certainly insulate the Law Lords from political interference.

Mark Cooray (1995) posits that, "The inevitable consequence of undermining the traditional role of the judiciary as the guardian of civil liberty and entrusting that responsibility to a politicized bureaucracy is that human rights become subjective standards capable of being used as the instruments of oppression. " Thus, constitutional reform will benefit the justice system by improving the public's perception of the present system, handling devolution disputes and constitutional issues, and giving human rights the treatment it truly deserves.

It will certainly open the way for equal opportunity. Women, ethnic minorities, the unemployed and black judges will stand a chance, as judges would be drawn from a wider range of social backgrounds. The Supreme Court would be relocated making judges more accessible and available to the wo/man on the street. Constitutional reform will not only improve government by simplifying the justice system of the UK, but make it more intelligible, transparent, accessible and democratic to the public.