Talk:Constitutional Reform Act 2005

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[edit] Expansion request

 Please help improve this article or section by expanding it.
Further information might be found on the talk page or at requests for expansion. (January 2007)

-- Beland 23:50, 13 August 2005 (UTC)

[edit] Effects of Separation of Powers

The effect of separating judicial power from the legislative power creates a unique situation. The power of the Supreme Court resides in the reliability of its rulings and reliability of its rationale for its opinions. The legislative branch has the power to make law and this is very respected as the government always seeks to make the law effective and enforced. The Supreme Court without legislative ability can only hear cases on the basis of law and it becomes more insulated from the immediate sensational politics of the day that can change so rapidly giving more stability. Therefore, the Supreme Court may become more learned in its rulings to give a good reason for its cases in order to not be restructured by the legislator. Conflicts can arise, but the legal precedents set by such conflicts shall empower or disempower the Supreme Court, so wisdom is going to be exercised. —The preceding unsigned comment was added by 212.219.190.241 (talk • contribs) 11:13, 15 November 2005 (UTC)

[edit] Separation of Powers

I have removed "and in any case is considered undesirable according to modern constitutional theory concerning the separation of powers." Because "separation of powers" is not a modern constitutional theory as it has been around for at least 230 years. Secondly under the Westminster system it is not true, as constitutionally Parliament remains sovereign and all members of the executive and judiciary remain the monarch's servants. It is all about as Walter Bagehot emphasised in his book "The English Constitution" the dignified (that part which is symbolic) and the efficient (the way things actually work and get done).

Of course this is just a POV (even if it is one that Bagehot held). So it anyone wants to reinsert such a line about Separation of Powers the then I think it should be sourced from an article which is explicit on this point with an explanation of how it it fits into the Westminster system. --Philip Baird Shearer 19:47, 15 December 2005 (UTC)

Though my knowledge on English constitutional law is slim, I think you're correct. In Canada, which government has its basis in the British system, there is a frequent mischaracterization of "separation of powers" being a core constitutional principle, which it isn't. The obvious fact that in the westminster system overlaps the legislative and executive illustrates this point. My guess is that US Constitutional principle of separation of powers is read as being a principle of all constitutions. PullUpYourSocks 03:23, 16 December 2005 (UTC)

On this issue the "The society of Conservative lawers" put out a paper entitled Constitutional upheaval: The response of a working party to the Government's consultation papers on a new way of appointing Judges, a Supreme Court for the United Kingdom, and the future of Queens' Counsel(PDF) published October 2003, foreword by Edward Garnier QC MP.

Part 6 Conclusion
114 We summanse our conclusions and recommendations.
The Position of Lord Chancellor
115. There are no practical reasons to abolish the position of Lord Chancellor, which, in practice, continues to work well.
116. The theoretical objection to the Lord Chancellorship is based on a particular application of the theory of separation of powers. The theory in this form has no place in the British Constitution There is no domestic, ECJ or ECHR jurisprudence which requires the abolition of the Lord Chancellorship.

--Philip Baird Shearer 21:05, 5 January 2006 (UTC)

When Gardnier presented a Memorandum made on his own behalf and on behalf of the Society of Conservative Lawyers on the office of the Lord Chancellor to the Select Committee on Constitutional Reform Bill, in April 2004, he included an further explanation of this position:

The Government stop short of suggesting that there have been recent developments in the jurisprudence of the European Court of Human Rights which would compel the United Kingdom to alter its constitution. The recent case which has led some observers to claim that the UK could not maintain the Judicial Committee or the position of Lord Chancellor is McGonnell v United Kingdom[78]. McGonnell concerned a challenge to a planning decision in Guernsey. The appeal was presided over by the Bailiff, who had also presided over the passage of the island's development plan. The Court held that there had not been an independent hearing. But the Court expressly rejected any suggestion that the Convention required a member state to adopt a separation of powers in its constitution:
47. The [UK] Government recalled that the Convention does not require compliance with any particular doctrine of separation of powers.
51. The Court can agree with the Government that neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts as such. The question is always whether, in a given case, the requirements of the Convention are met. The present case does not, therefore, require the application of any particular doctrine of constitutional law to the position in Guernsey: the Court is faced solely with the question whether the Bailiff had the required "appearance" of independence, or the required "objective" impartiality.
Therefore, there are no new circumstances to cause Britain to adopt an 18th century theory of separation of powers as a blueprint for a 21st century constitution.

--Philip Baird Shearer 21:18, 5 January 2006 (UTC)