Constitutional Reform, the Lord Chancellor, and Human Rights: The Battle of Form and Substance
| Date | 01 March 2005 |
| Author | Roger Smith |
| DOI | http://doi.org/10.1111/j.1467-6478.2005.321_1.x |
| Published date | 01 March 2005 |
JOURNAL OF LAW AND SOCIETY
VOLUME 32, NUMBER 1, MARCH 2005
ISSN: 0263-323X, pp. 187±201
Constitutional Reform, the Lord Chancellor, and Human
Rights: The Battle of Form and Substance
Roger Smith*
This article examines the impact of the Human Rights Act on the
government's constitutional proposals for reform of the role of the
Lord Chancellor and the appointment of the judiciary. It also looks at
the uncertain acceptance of a `human rights' culture by the department
charged with lead responsibility for its implementation. It concludes
that the government went further than was required in reforming the
role of the Lord Chancellor. As a consequence, considerable ± and
possibly undue ± weight now hangs on the enlarged role of the Lord
Chief Justice. Meanwhile, the Department of Constitutional Affairs and
its ministers have rejected the `rule of law' brief of the Lord
Chancellor without clarity as to where such responsibilities might now
be adequately located within government.
The Human Rights Act 1998 delivered three landmines with sufficient
potential to shudder the foundations of the constitution. None of the three
have yet fully detonated ± though the initial reforming blasts are beginning
to be felt. The three were:
(i) The disguised, but real, shift of power to the judiciary implemented by
section three and the accompanying tremor to the doctrine of parlia-
mentary sovereignty ± with judges injuncted: `So far as it is possible to
do so, primary legislation and subordinate legislation must be read and
given effect in a way which is compatible with Convention rights';
1
(ii) The delayed effects of incorporation of the fair trial rights in article six
for constitutional conventions governing the role of the Lord Chancellor
and the appellate committee of the House of Lords;
(iii) The overall creation of a `human rights culture', extolled both by the
Act's author, Lord Irvine, and his successor, Lord Falconer, as its most
187
ßCardiff University Law School 2005, Blackwell Publishing Ltd, 9600 Garsington Road,
Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* Director, JUSTICE, 59 Carter Lane, London EC4V 5AQ, England
1 s. 3(1) Human Rights Act 1998.
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