“English Reforms to Judicial Selection: Comparative Lessons for American States?” by Judith Maute

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February 3rd, 2012

It is often said that Britain[1] and America are two nations divided by a common language.[2]  Although the American common law system was derived from England, many fundamental differences exist between the American and English legal systems and governmental frameworks.  In contrast to the American-style legislative process, extensive formal consultations take place in Britain before government submits a bill for action to Parliament.  Historically, no clear separation of powers existed in the complex relationships between Parliament and Government (the elected executive branch) headed by the Prime Minister, and the judiciary, until quite recently headed by the Lord Chancellor, a Prime Minister appointee.[3]  For the last 700 years, the power to appoint judges was vested in the Lord Chancellor.[4]  While the discourse continues, monumental changes are underway as part of constitutional reform.  In time, these pending reforms will likely produce a greater symmetry between Britain, America, and other modern democracies.[5]

On June 12, 2003, without prior public consultation, Prime Minister Tony Blair shocked the legal community by announcing plans to implement sweeping reforms to the British legal system, creating a new Department for Constitutional Affairs (“DCA”), headed by Secretary of State Lord Falconer, and also naming Falconer as interim Lord Chancellor until that position could be abolished.[6]  Government introduced the Constitutional Reform Bill to the House of Lords in February 2004.[7]  Following extensive debate and revisions, the bill was adopted by both houses of Parliament and received the Royal Assent on March 24, 2005.[8]  Transfer of judicial appointments to an independent, non-governmental entity began on April 3, 2006.[9]  Effective July 4, 2006, an elected speaker of the house took office in place of the Lord Chancellor.[10]  The Lord Chief Justice has assumed the head of the judiciary.[11]  In barely three years, Britain reformed its long-standing legal structure, providing for clearer separation of powers between the judiciary, Parliament, and the elected government’s executive branch[12]—truly, a remarkable achievement.

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  [1]. The United Kingdomincludes England, Wales, Scotland, and Northern Ireland.  This Article focuses on British reforms enacted by Parliament, with limited reach toEnglandandWales. ScotlandandNorthern Irelandhave been engaged in comparable, but separate, discussions relating to a wide range of pending legal reforms.

   [2]. See Quote . . . Unquote, http://www1c.btwebworld.com/quote-unquote/p0000149.htm (last visited Oct. 23, 2006) (noting statements variously attributed to Oscar Wilde, George Bernard Shaw, and Winston Churchill).

   [3]. See Ron Fenney, Essential Central Government 2002 11-12 (6th ed. 2002).

   [4]. See Department for Constitutional Affairs, Constitutional Reform: A New Way of Appointing Judges, 2003, CP 10/03, at 11-12, available at http://www.dca.gov.uk/consult/jacommission/judges.pdf [hereinafter Dep’t for Constitutional Affairs, A New Way of Appointing Judges].

   [5]. See id. at 9.

   [6]. Dep’t for Constitutional Affairs, Manifesto, http://www.dca.gov.uk/dept/manifesto.htm (last visitedOct. 23, 2006).

   [7]. The English legislative process is complex, and most Parliamentary acts come from government departments or recommendations of independent advisory commissions and committees, whether ad hoc or standing.  Michael Zander, The Law-Making Process 3 (1994).  The governmental department responsible for a project determines the extent of outside consultation to occur before a bill is introduced.  Id. at 7.  After one of these bodies has considered the issues assigned for its scrutiny, it will typically issue a Green or White Paper, and sometimes both.  A Green Paper is more preliminary: a tentative government proposal on an issue, put out for comment.  By delaying any final commitment, the government can save face, and make adjustments in the later White Paper, which is considered a firm statement of policy.  Id. at 8-9.  After this customary gestation process, the findings and recommendations are sent to the Office of Parliamentary Counsel for drafting in cooperation with the body proposing the bill.  Id. at 14.  Thereafter, the bill gets three readings in each House of Parliament, during which amendments can be made.  Id. at 53. To become law, a bill must be approved by both Houses and then sent on for the formality of the royal assent.  Id. at 75.

   [8]. Constitutional Reform Act, 2005, c. 4, pt. 1 (Eng.), available at http://www.opsi.gov.uk/ACTS/acts2005/20050004.htm.

   [9]. Dep’t for Constitutional Affairs, Constitutional Reform, http://www.dca.gov.uk/constitution/reform/reform.htm (last visitedOct. 4, 2006) [hereinafter Dep’t for Constitutional Affairs, Constitutional Reform].

  [10]. See Amanda Brown, Decision Day for New Lord Speaker, Press Ass’n Limited (Eng.),July 4, 2006, at 1.

  [11]. The original plan to abolish the title of Lord Chancellor was dropped in light of fierce opposition in the House of Lords.  Alison Hardie, Blow to Blair’s Bid to Axe Lord Chancellor, Scotsman, July 15, 2004, available at http://news.scotsman.com/topics.cfm?tid=928&id=804422004 (last visited Oct. 21, 2006).

  [12]. See Dep’t for Constitutional Affairs, Constitutional Reform Act 2005—Legislative Process, http://www.dca.gov.uk/legist/constreform.htm (last visitedOct. 23, 2006).