Constitutional Principles

Lord Woolf in a recent interview expressed grave concerns regarding the reallocation of functions formerly under the control of the Home Office and the Lord Chancellor. Discuss the constitutional principles which Lord Woolf argued may be at risk including the separation of powers and the rule of law. Contents: (1) Introduction. (2) A brief history of recent constitutional reform. (3) Lord Woolf on the reallocation of powers. (4) Constitutionalism. (5) Conclusion. 1. Introduction Lord Woolf has voiced caution in the recent process of constitutional reform. His critique has been based on an understanding of the principles of the UK constitution and their functioning in practice. The former Lord Chief Justice urges remembrance of these foundations in seeking to improve the State, as failure may endanger liberty in the future. Before considering Lord Woolf’s comments and analysing their philosophical foundations, we will survey the legal changes and their political background. 2. A brief history of recent constitutional reform In 2003 the UK government continued a process of rapid reform which had already undertaken regional devolution, removal of hereditary peers from the House of Lords, the and integration of the European Convention on Human Rights among other smaller changes. A Department of Constitutional Affairs was created partly to assign the Lord Chancellor a new role distinct from the judiciary. Formerly the Lord Chancellor was at the root of the three branches of government – the executive, the legislature, and the judiciary. The Constitutional Reform Act 2005 aimed to resolve this discrepancy to the principle of the separation of powers and ensure compliance with the European Convention on Human Rights Article 6: the right to a fair trial. After some wrangling with the House of Lords the Government Bill was passed. The judicial functions of the Lord Chancellor were distributed to the Lord Chief Justice. The role of Lord Speaker was relinquished, but the office of Lord Chancellor was retained as certain powers pertaining to the role can only be divested by Act of Parliament. The title of Lord Chancellor was to be held in conjunction with the new office of Secretary of State for Constitutional Affairs. In May 2007 the Department for Constitutional Affairs was disbanded in favour of a new Ministry of Justice. The Secretary of State for Justice also took the title of Lord Chancellor, and possesses powers pertaining to prisons, probations and sentencing. Such powers formerly belonged to the Home Office, which now has the remit to concentrate on matters such as terrorism, policing and immigration. 3. Lord Woolf on the reallocation of powers Lord Woolf, the former Lord Chief Justice, pronounced criticism and cautious acceptance throughout the process of constitutional reform. Initially annoyed that the government’s plans to abolish the role of Lord Chancellor were announced somewhat surreptitiously on June 12th 2003 “in a press release” rather than a public debate, about which he was informed “minutes, rather than days” before (1). A slightly later statement claimed that the policy was made without consulting the judiciary and would create a “vacuum” in the constitution (2). The fullest exploration of this problem, and his new position on reform, was given to Cambridge University in the following year at the Squire Centenary Lecture (3). Lord Woolf began by summarising the characteristics of the British Constitution and evaluating its merits. Having both written and unwritten elements, which are not entrenched, the UK constitution is flexible but is lacking some of the protection afforded by more rigid documents. That there has been no pressing need for a written constitution reflects a culture of co-operation and mutual respect between the bodies of government. Tension was overcome by good-will, which was “made easier not because of the separation of powers, but because of the absence of the separation of powers”. There was a fundamental fusion between the branches. The Lord Chancellor belonged to all three, while the Law Lords also sat in Parliament. Fusion overcome discord and the separation of powers was achieved by a clear demarcation of roles. For example, parliamentary sovereignty and the sole right to legislate is maintained, as the judiciary are only given the right to interpret in the light of the Human Rights Act 1998 and not to ‘strike-down’ legislation in the manner of the United States Supreme Court. Lord Woolf recognised that there is a need to meet public expectations of judicial independence as a guarantee of the rule of law. Although he voiced earlier concerns about the abolition of the Lord Chancellor (4), he acknowledged that the office required reform and redistribution of certain powers due to increasing politicisation and a conflict of interests on issues such as crime, immigration and handling tribunals. What was essential was to maintain the balance between the requirements of the separation of powers and the rule of law, and the delicate balance of checks and balances that have evolved with the unwritten constitution. Following the Constitutional Reform Act 2005 and the announcement of the creation of the Ministry of Justice, Lord Woolf gave an interview to the BBC Today programme in April 2007 raising “concerns about our liberty” (5). The distribution of powers on prisons and probations from the Home Office to the Secretary of State for Justice could conflict with the Lord Chancellor’s traditional role of protecting the interests of the judiciary in the Cabinet. This is compounded by the fact that through habit and tradition – unwritten elements of the constitution – judges look to the Lord Chancellor as the head of the judiciary. Furthermore, the departmental changes were wrought without the consent of Parliament. It is clear that Lord Woolf’s concern is that constitutional changes should be scrutinised and legitimated by Parliament. 4. Constitutionalism Lord Woolf’s critique of reform involves a complex network of concepts. A constitution is, according to Professor KC Wheare, “the whole system of government of a country, the collection of rules which establish and regulate or govern the government” (6). Legality is to act intra vires: within the rules of the constitution. Constitutionalism is the view that the constitution itself should conform to certain philosophical principles, and it is from this stance that Lord Woolf judges reform. The rule of law is the most fundamental concept of a constitution, and has several meanings. Firstly, that law should pervade as opposed to anomy (7), and also that it has a superior status than non-legal claims such as decrees and conventions. The rights of individuals should be upheld unless they are in breach of the law, and there should be equality before the law for all individuals within the sovereign realm. Lord Woolf understands the necessity of the rule of law for a constitution to exist and identifies the judiciary’s important role in maintaining this. The un-entrenched UK constitution has evolved gradually to an effective system of checks and balances whereby the branches of the government and their respective powers form an efficient method of government while insuring individual liberty against arbitrary power. The separation of powers is a distinction that has its origins in Aristotle where government is divided into the ability to propose law, that of making law, and that of judging on law (8). The concept was later articulated more fully by Locke and Montesquieu as a means of achieving the rule of law. But Lord Woolf points out that the system also involves fusion at various points. These included the Lord Chancellor, the Law Lords in Parliament, and the executive drawn from the legislature. The reason for this, he surmises, is that of co-operation between the branches; like hands extended across the divide. In this view he is not alone: the principle of harmony has been expressed several times in the past (9). It is his achievement to remind us of its importance. 5. Conclusion In highlighting the principles that have informed the development of the constitution, Lord Woolf makes explicit the delicate nature of checks and balances. It is incorrect to place him against reform but he is a voice of caution against unconsidered change, such as the reallocation of the Court Service to political control. The grave danger for Lord Woolf is that well-meaning but ill-wrought changes to the separation of powers and points of harmony might ultimately curb our liberty. Footnotes (1) Interview with Lord Woolf, New Statesman 16 Feb 2004. (2) ‘Legal Reform creates a vacuum, says Lord Woolf’, The Independent 10 July 2003. (3) Lord Woolf, ‘The Rule of Law and a Change in Constitution’, Squire Centenary Lecture, Cambridge University, 3 March 2004. (4) H. Woolf, ‘Judicial Review – the tensions between the executive and the judiciary’ (1998) 114 LQR 579. (5) ‘Lord Woolf fears Home Office reforms’, (6) Quoted in Barnett H.(2006), Constitutional and Administrative Law, Routledge-Cavendish: Oxon; p. 7. (7) See Agamben G. (2005), The State of Exception; The University of Chicago Press: London. (8) Politics, Bk iv, xiv. (9) See Rui Verde, ‘The Harmonious Constitution’ (2000), References Books: (1) Agamben G. (2005), The State of Exception; The University of Chicago Press: London. (2) Aristotle, Politics, Bk iv, xiv. (3) Barnett H.(2006), Constitutional and Administrative Law, Routledge-Cavendish: Oxon. Articles: (6) H. Woolf, ‘Judicial Review – the tensions between the executive and the judiciary’ (1998) 114 LQR 579. (7) Interview with Lord Woolf, New Statesman 16 Feb 2004. (8) ‘Legal Reform creates a vacuum, says Lord Woolf’, The Independent 10 July 2003. (9) ‘Lord Woolf fears Home Office reforms’, (10) Lord Woolf, ‘The Rule of Law and a Change in Constitution’, Squire Centenary Lecture, Cambridge University, 3 March 2004. (11) Rui Verde, ‘The Harmonious Constitution’ (2000), Statutes: (12) Constitutional Reform Act 2005. (13) Human Rights Act 1998.

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