Independence of the Judiciary
person, irrespective of that person’s ability and integrity. 21
the Pussy Riot pop group in Russia has provoked significant controversy over the influence of the Russian Government on the judge who presided over the trial – a judge reported as having sided with the prosecution in 90% of her cases and as having only ever acquitted once in 178 cases. 18 The position as regards the judiciary and its independence has been enhanced over recent years. Significantly, the introduction of the Constitutional Reform Act of 2005 (‘the Act’) resulted in greater transparency and the removal of certain constitutional oddities. In particular 19 , the office of Lord Chancellor has been reformed in that the Lord Chancellor is no longer permitted to act as both a government minister (sitting in cabinet) and as a judge (sitting in the House of Lords), not to mention as speaker of the upper house in Parliament; the Lord Chancellor is also no longer the head of the judiciary, a role which is now performed by the Lord Chief Justice. This was an essential reform since the position of the Lord Chancellor was possibly the most outrageous and unjustifiable infringement of the doctrine of ‘separation of powers’, rightly described as having been ‘extraordinary, breaching all the formal requirements of separation of powers doctrines’ , 20 since it entailed one person performing functions which ought not to have been performed by one Heywood-murder.html (‘Gu Kailai spared death for Neil Heywood murder’). 18 http://www.telegraph.co.uk/news/worldnews/euro pe/russia/9479678/Pussy-Riot-judge-placed-under- state-protection.html (‘Pussy Riot judge placed under state protection’). 19 For a more detailed summary of the provisions of the Act, see P. Leyland P, The Constitution of the United Kingdom (2012) at pages 76-79. D. Oliver, Constitutionalism and the abolition of the office of Lord Chancellor (2004), 57 Parliamentary Affairs 754) at page 759.
In addition, the Act established the Supreme Court, in place of the House of Lords, as the highest appellate court, so removing the oddity that members of the court were, at least on the face of it, drawn from the ranks of Parliament even though they were generally appointed having previously sat, as judges, in the Court of Appeal. Even now, however, it is perhaps unhelpful that new appointees to the Supreme Court have been made life peers in order that their titles match those of the existing members, since this results in the continued appearance of a lack of independence, despite the opening of a separate court building at the Middlesex Guildhall in order to remove the Law Lords from the Palace of Westminster, when the reason for the reforms was to remove that appearance altogether. The principal reason for the creation of the Supreme Court was to ensure a complete separation between the judiciary and the legislative, and therefore ‘enhance the structural independence of the judiciary from the elected branches of government’ . 22 A further development which is worth noting in this context also stems from the Act. This is the fact that the Act also contained reforms concerning the appointment of judges, introducing a new, and independent, body known as the Judicial Appointments Commission to oversee the recruitment process in place of what had previously been an informal process which created the impression that the Lord Chancellor was able to appoint judges who would not ‘rock the boat’ as 21 To take an example, there is little doubt that Lord Hailsham was a very talented man but this talent probably was more as a politician than it was as a judge, yet he was still the most senior judge in the land: see G. Lewis, Lord Hailsham, A Life (1997). 22 R. Masterman, The Separation of Powers in the Contemporary Constitution (2011).
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