1. Introduction
Prior to the passing of the Constitutional Reform Act 2005 (CRA 2005),1 the
main challenge of the judiciary institution in achieving judicial independence was
the weak separation of powers between the judiciary institution and executive
institution, and the legislature and the judiciary. The need for reform can be seen
in three aspects which will be addressed in full in latter part of this essay:
1. The position of the Lord Chancellor
2. Judicial appointments
3. Appellate committee of the House of Lords
Therefore the purpose of this essay is to address the challenges of judicial
independence prior to the passing of the CRA 2005,2 and to provide a review on
whether the 2005 Act3 has served its purpose in resolving the issues addressed.
The result of this essay is expected to answer in affirmative.
2. Doctrine of Separation of Powers
The doctrine of separation of powers was announced by Baron De Montesquieu
which provides that liberalism and prevention of tyranny will be ensured by
having the three state institutions of different roles, function and powers
separated and constitutionally isolated from another. 4 The three state institutions
includes the legislature which makes law, the executive which enforces the law
and the judiciary which settle disputes of law.
1
Constitutional Reform Act 2005
2
ibid
3
Ibid
4
Charles de Secondat, Baron de Montesquieu, De l’Espirit des Lois (1748)
1
, The focus of this essay will be on the relationship between the judiciary
and legislature, and the executive and judiciary, before and after the passing of
the CRA 2005.5
For the purpose of this essay, it is required to provide a clear illustration
on the role and function of the judiciary in full. The judiciary’s role is to uphold the
rule of law and to safeguard constitutional and human rights 6 by acting as a
check on the executive by way of judicial review, by prevention of passing of law
of draconian nature by declaration of incompatibility. 7 However, for the judiciary
to exercise their role and function of safeguarding constitutional and human
rights, the main and fundamental requirement is judicial independence. Judicial
independence refers to the constitutional position of the judiciary which is free
from influences from the executive and the legislature, 8 therefore a strong
separation of powers between the judiciary and the other two branches is
required in ensuring independence of the judiciary.
3. The need for reform: The position of the Lord Chancellor prior to the passing
of the CRA 20059
Perhaps the greatest challenge of judicial independence prior to the passing of
5
Constitutional Reform Act 2005
6
Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (10 th edn, Macmillan, 1959)
7
Human Rights Act 1998, s 4
8
Draft Universal Declaration on the Independence of Justice (“Singhvi Declaration”)
https://www.icj.org/wp-content/uploads/2014/03/SR-Independence-of-Judges-and-Lawyers-Draft-
universal-declaration-independence-justice-Singhvi-Declaration-instruments-1989-eng.pdf accessed 11
March 2020.
9
Constitutional Reform Act 2005
2
Prior to the passing of the Constitutional Reform Act 2005 (CRA 2005),1 the
main challenge of the judiciary institution in achieving judicial independence was
the weak separation of powers between the judiciary institution and executive
institution, and the legislature and the judiciary. The need for reform can be seen
in three aspects which will be addressed in full in latter part of this essay:
1. The position of the Lord Chancellor
2. Judicial appointments
3. Appellate committee of the House of Lords
Therefore the purpose of this essay is to address the challenges of judicial
independence prior to the passing of the CRA 2005,2 and to provide a review on
whether the 2005 Act3 has served its purpose in resolving the issues addressed.
The result of this essay is expected to answer in affirmative.
2. Doctrine of Separation of Powers
The doctrine of separation of powers was announced by Baron De Montesquieu
which provides that liberalism and prevention of tyranny will be ensured by
having the three state institutions of different roles, function and powers
separated and constitutionally isolated from another. 4 The three state institutions
includes the legislature which makes law, the executive which enforces the law
and the judiciary which settle disputes of law.
1
Constitutional Reform Act 2005
2
ibid
3
Ibid
4
Charles de Secondat, Baron de Montesquieu, De l’Espirit des Lois (1748)
1
, The focus of this essay will be on the relationship between the judiciary
and legislature, and the executive and judiciary, before and after the passing of
the CRA 2005.5
For the purpose of this essay, it is required to provide a clear illustration
on the role and function of the judiciary in full. The judiciary’s role is to uphold the
rule of law and to safeguard constitutional and human rights 6 by acting as a
check on the executive by way of judicial review, by prevention of passing of law
of draconian nature by declaration of incompatibility. 7 However, for the judiciary
to exercise their role and function of safeguarding constitutional and human
rights, the main and fundamental requirement is judicial independence. Judicial
independence refers to the constitutional position of the judiciary which is free
from influences from the executive and the legislature, 8 therefore a strong
separation of powers between the judiciary and the other two branches is
required in ensuring independence of the judiciary.
3. The need for reform: The position of the Lord Chancellor prior to the passing
of the CRA 20059
Perhaps the greatest challenge of judicial independence prior to the passing of
5
Constitutional Reform Act 2005
6
Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (10 th edn, Macmillan, 1959)
7
Human Rights Act 1998, s 4
8
Draft Universal Declaration on the Independence of Justice (“Singhvi Declaration”)
https://www.icj.org/wp-content/uploads/2014/03/SR-Independence-of-Judges-and-Lawyers-Draft-
universal-declaration-independence-justice-Singhvi-Declaration-instruments-1989-eng.pdf accessed 11
March 2020.
9
Constitutional Reform Act 2005
2
