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Did the Constitutional Reform Act 2005 actually do much for judicial independence?

I'm studying the separation of powers in Constitutional&Administrative law at the moment and am working through a tutorial sheet on judicial independence. One of the questions is about whether the statutory guarantees of judicial independence in the Constitutional Reform Act 2005 are actually worth anything. I can't find much academic opinion on this and my own is rather basic (that the judiciary has for a long time been pretty fiercely independent so the Act may have appeared more significant than it actually was)... so I thought I might ask the knowledge-base that is (I hope! :tongue:

) the TSR legal community.

Bump...

The very fact that the Constitutional Reform Act was drafted suggests political awareness of the lack of separation. The fact that it was then passed shows Parliamentary intention to pull the judiciary away from the arms of the executive and legislature (creation of the Supreme Court, removal of the Lord Chancellor from the HL, etc). Bradley and Ewing acknowledge the UK Constitution "now embraces a stronger formal commitment to judicial independence, and to a greater separation of powers".

The separation of powers is always going to be a problem in the UK , because of the unavoidable position of our executive sitting in our legislature. Combined with executive dominance, this makes for a rather fatal combination to the doctrine in the UK (see Barendt E, ‘Separation of Powers and Constitutional Government’ [1995] Public Law 599, p614 in particular).

I'm not sure I'd agree the judiciary has been fiercely independent. The judiciary often seems to bow down to the will of Parliament, asserting sovereignty. My argument would be that the judiciary is as independent as it wants to be (to an extent). Look at the way in which the Human Rights Act was adopted in the early 2000's (e.g. A v SSHD [2004] UKHL 56) and how that defiance has transitioned into self-constraint through judicial conservatism (where have all the Lord Dennings gone?!)

Keith Ewing argues that since the Human Rights Act, judges “have been presented as Herculean figures, the only thing to protect us from the tyranny of state power”. We are perhaps no longer in “a time when the common law continues to accord a legislative supremacy to Parliament” . On the other hand, Ewing also goes into how judges, in their own conservatism, have upheld various defeats against Liberty in favour of an archaic view of Parliamentary sovereignty. Judges have the power, but perhaps remain constrained in their thinking to actually use it.

Ewing's article here: http://www.guardian.co.uk/commentisfree/libertycentral/2010/mar/08/judges-courts-human-rights-act
Note: it's in a newspaper, but it is by a distinguished Professor of Public Law (and author of a core textbook - Bradley & Ewing)

Back to the Constitutional Reform Act, I haven't found much commentary on the extent to which there is independence as a result of the Act. The Supreme Court is still relatively new and we are perhaps still waiting to see how changes affect the court. I'd argue the Human Rights Act has done much more to provide independence to the judiciary - but again the question is whether the judiciary will choose to exercise that power. We don't seem to be surprised when decisions from Strasbourg disagree with our judiciary. Consistent disagreement between the House of Lords and Strasbourg may be down to the judicial conservatism of the judiciary.

We don't want to confuse judicial activism and judicial independence (in regards to the separation of powers), but they are certainly linked. I'd argue the Constitutional Reform Act is more indicative of political (than legal) change.

(edited 12 years ago)

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