The Road To The Constitutional Reform Act 2005: An Historical and a Political Perspective.

The following is a transcript of the lecture delivered by Lord Falconer at the Inn on Tuesday 6 May 2025.

INTRODUCTION

The Constitutional Reform Act 2005 created the Supreme Court and rewrote the constitutional relations between the judges and the rest of the state. 

There are two histories of this crucial reform.  The first is the history, over a hundred years, of the legal community, including the judges, separating from the political community and becoming a crucial check and balance to the government, and the second is the history of the Blair government deciding to do the reforms and then delivering them.  

My lecture tonight focuses on the century of separation. But let me briefly say something about the internal build up.  

The announcement of the reforms which became the CRA 2005 was made in June 2003, and accompanied the resignation of Lord Irvine as Lord Chancellor. Lord Irvine was a towering figure within the Blair government. He drove through the Human Rights Act, the removal of 90% of the hereditary peers and the two devolution Bills.  He was uniquely forceful and confident, and was completely trusted by the Prime Minister. That trust was profound and justified.  

But as I will describe later, the ability of a Lord Chancellor to exercise that degree of political power had long gone.  

Lord Irvine was unafraid to take on politicians. There was much he disagreed with on a variety of mixed legal and policy grounds. He did not fall out with the politicians including the prime minister over what became the CRA changes. They were never seen as having any effect on electoral popularity. Lord Irvine’s departure occurred because he approached government through the eyes of a careful lawyer. And that is not the culture of modern government. Over the previous century, the divergence between lawyer and politician became very marked. No longer did the lawyers and the politicians look at the world through the same lens. In 1900 they were allied; by 2003 they were on different sides. 

On the day the announcements were made in June 2003, the Lord Chief Justice was at a judicial away-day along with the senior members of the judicial leadership. The LCJ, Lord Woolf, rang me that evening. The President of the Family Division, Lady Butler-Schloss, and the master of the Rolls, Lord Phillips, were in the room with Lord Woolf. They asked me who was the head of the judiciary.  Lord Woolf asked me if I intended to sit as a judge. I said no. They asked if I remained the head of the Judiciary. I told them I did, which they accepted, and would remain so until the changes had gone through. I strongly supported the changes. Time was needed to work out how they would be implemented.  

There was great anger at the abruptness and the lack of consultation. But those leading the judges at the time well understood the changes were going to happen and engaged right from the outset in detailed negotiations about the parameters of the new relationship between the judges and the executive. Their work and their far-sightedness, along with the work of Sir Hayden Phillips, the Clerk in Chancery (the LC’s permanent Secretary) ensured the changes were embedded and became such a towering constitutional achievement. 

The introduction of the changes by legislation was a long brutal affair. It took two years. The Lords, and many judges, did everything they could to block them. The changes got through because the government had a massive majority in the Commons and there was no dissent amongst Labour MPs.  

Wider consultation and more detailed thought before the announcement would have made those two years much easier. But I have no regrets about the fact of or the method of introduction and implementation of these changes. I am doubtful if they had been the subject of long consultation before they were adopted as government policy whether they would have got through at all. Not because they were wrong. They most certainly were right. But because the willingness of the government to pursue change so complicated and so shrilly opposed would have dimmed when they had little electoral gain or popular interest. The continuing commitment of the government to these changes was in part the result of the enormous debate and row their announcement provoked.

They were the product of the history where the judges gradually separated from the politicians and incrementally began holding them to law. The CRA changes have provided copper bottomed protection to the independence of the judiciary. And they did it before the role of the law in our constitution became contested.  

But let me return to the real history.  

THE CLOSENESS OF BAR AND POLITICIANS AT THE BEGINNING OF THE 20TH CENTURY

At the beginning of the 20th Century, there was no institutional conflict between judges and politicians. Judges being independent of the executive, and the executive subject to law had been accepted since the Act of Settlement in 1701. The judges felt uninhibited by political pressure, and the politicians uninhibited by judicial activism. The viewpoint of mainstream lawyers and mainstream politicians was the same.

The Lord Chief Justice, the Lord Chancellor, and the Attorney General, the triumvirate at the top of the legal profession, would all, at one time or another, have been senior members of the Bar, and also invariably successful politicians who had spent time in the Commons.  

The LCJ would frequently continue to be at least informally a politician, whilst also sitting as a judge.  

On Monday 1 January 1900 that triumvirate was:

Lord Russell of Killowen the LCJ, a former Liberal Party AG, advocate of Irish Home Rule, intensely partisan, one of the most successful advocates of his day, and widely regarded by the legal community as a brilliant judge and lord chief.

Lord Halsbury, the Conservative LC, a moderately successful member of the criminal Bar, not remotely in Russell’s class, but a long-term LC, who shamelessly rewarded useless Tory politicians with high court judgeships.

Richard Webster KC, the Conservative AG, with a good practice and reputation and a high-flying politician who refused the job of Home Secretary in 1885 in favour of being the AG because he wanted to continue in practice at the Bar, a decision he stuck with for 15 years.  

A recently actively practising barrister became PM in 1908.  HH Asquith’s strengths as a barrister were the strengths that promoted his political career. Professor Lester, in Asquith’s biography, The Last Of The Romans describes ‘his unshakeable belief in the virtues of rational thought, eloquence, and self-control’, acquired as a classicist and barrister. He had refused to put himself forward to lead the Liberal party in 1898, because of the effect on his legal practice. 

In October 1913 the Lord Chief Justice, Richard Webster, by then Lord Alverstone resigned. He was very ill. Rufus Isaacs, the AG, was appointed by Asquith to succeed him. Isaacs’ son describes going with his father to see Alverstone at his home where he lay dying.  They were political opponents, but Webster is warm and supportive and gives Isaacs his blessing. The ties that bound through the Bar were stronger than the ties which bound through party politics. 

From his appointment, Isaacs remained a very active participant in politics. He was instrumental in driving emergency financial legislation for Lloyd George, he mediated between Lloyd George and Asquith as the liberal government collapsed in 1916, he was appointed ambassador-extraordinary and high commissioner in Washington. Throughout he remained LCJ, but he sat little.  

In 1921 Lloyd George offered him the Viceregency of India. He accepted. A new LCJ was required.

CRACKS APPEAR IN THE CLOSENESS:

The choice was 77-year-old Sir Alfred Lawrence – an unsuitable choice. He had no great legal skills to speak of. He was substantially deaf. The PM was reluctant to lose his AG and agreed to appoint Sir Alfred, on terms he would furnish Lloyd George with an undated letter of resignation.  

The Lord Chancellor, Birkenhead, understood all too well what it meant for judicial independence. He wrote to Lloyd George on Wednesday 9 February 1921 saying, ‘it would make the Lord Chief Justice a transient figure subject to removal at the will of the government of the day and the creature of political exigency’. It’s a first crack that rapidly widened.   

Lawrence ‘resigned’ on Friday 3 March 1922, an event he first learned of when he read it in the Times. Lawrence retired to his beautiful home in Brecon and lived a contented country life for 14 more years. He was duly replaced by Hewart, still the AG.  

THE CRACKS WIDEN:

Two years after Birkenhead’s letter, the politicians used the lawyers’ increasing pressure on true separation to kill the first Labour government and humiliate the AG.  

On Wednesday 6 August 1924, Travers Humphreys, Treasury Counsel on behalf of the Crown at Bow Street Magistrates, amid great fanfare announced the prosecution for sedition of John Campbell, a brave war hero maimed in the First World War and the temporary editor of an obscure hardly read newspaper, Workers Weekly.  

A week later the charge was dropped. The AG, Sir Patrick Hastings had decided to drop the prosecution in a meeting with the prime minister. The opposition screamed political interference. On Wednesday 8 October 1924, the government lost a vote on its conduct of the Campbell prosecution which it had treated as one of confidence, and lost the ensuing general election by a landslide – a massive red flag that the legal office holders and the politicians had to keep their distance. In the debate, Hastings was humiliated by John Simon and Leslie Scott, the leading barristers in the house for the liberal and the Tory party. The ties that bound had gravely weakened.  Hastings was shattered particularly by their conduct.  

The First Non-Political LCJ:

In 1946, Lord Goddard, a Lord of Appeal in Ordinary, became Lord Chief Justice: the first non-political appointee (almost every previous holder of the office since 1750 had first been Attorney General) and the first to have a law degree. He succeeded Lord Caldecote who had been Attorney General, and LC, and was actually appointed LCJ from the position of leader of the Lords.

Although many years before Goddard had stood as an independent conservative against a mainstream conservative who had got divorced, Goddard was not a politician.  

In his Lives of the Lord Chancellors, RFV Heuston does not see Goddard’s appointment as particularly significant. He refers to it in passing: ‘Attlee deserves as much credit as Jowitt for impartiality, for in one month in 1946 he appointed as [LCJ] a former Conservative candidate (Goddard); and to the Court of Appeal a former Conservative Law Officer (D.B. Somervell)’. But it was profoundly significant.  

As recorded by Fenton Bresler in his biography of Goddard Lord Parker, Goddard’s successor, said Goddard ‘would go down in history as bringing to an end the convention of political appointments to the job of LCJ.’ The then AG, Hartley Shawcross KC, said he was offered the job by Attlee but in a way that demanded a refusal. ‘I was offered the post by [Attlee] and [Jowitt]’ Shawcross said, ‘although the prime minister put it in his typically laconic way “I don’t suppose you’ll want it, will you”’.

 Jowitt (after he had left Office) described the approach that he had taken to judicial appointments: ‘I think that I can fairly say that we have established a tradition in which “politics” and “influence” are now completely disregarded. The Lord Chancellor selects the man who he believes to be best able to fill the position.’

Between 1924 and 1946, a sea change did occur, and merit not politics became the driving ethos of judicial appointments. The Goddard appointment is the big break with the past. It was a gradual journey there, but by 1946 the idea that the Attorney General could be appointed LCJ was not seriously entertained. And as the judges ceased to be politicians, they incrementally asserted their place in holding the executive to the law. All LCJs from Goddard onwards have been appointed on judicial merit, with politics playing no part. 

The Change in The Position Of The Lord Chancellor: 

Just as the LCJ changed, so did the LC. Until around 1929, he remained a mainstream strong politician with real acceptance from the judges. But from then he evolved from being a powerful political insider to being, either an outsider or a spent force as a politician, with little institutional political power. Whatever political standing he had, came to depend in the end on his personal relationship with the prime minister. And there were limits on that because even prime ministerial support cannot sustain indefinitely a politician diverging from the electoral aims of the government. The crucial change between 1900 and 2005 was that politics ceased to depend on the good opinion of an informed elite, but instead depended on the views of a huge electorate who seldom concentrated on politics. Elite politics was replaced by democratic politics, based on a wide suffrage.  The resolution of cases, the world of the barrister, depends on a detailed understanding and analysis. But seeking the right policy answer is only one part of the world of the politics. Determining on the wisdom of staying in the European Union is a very different skill from persuading the electorate of that. 

As far as the judges were concerned, they accepted the primacy of the Lord Chancellor but as his standing as a politician fell, the appointment of judges was increasingly on merit, and they increasingly saw the conflict between the judges and the politicians, his ability to command the judges decreased. And as the years went on, particularly from 1945, the judges developed views of their own.  And they became less respectful of the LC, less willing to accept his leadership, and increasingly resentful of a politician as their head.  They saw the benefits of having a cabinet minister as their own, but they would not accept his views on a whole range of issues. 

Halsbury was a partisan conservative. He wielded considerable influence with the judges primarily by a ruthless use of patronage and an unyielding determination to play a significant role as a judge. The institutional position of the LC with the judges was very strong during his long tenure.  

The last Conservative appointed LC before the CRA 2005 was Lord MacKay – the opposite of Halsbury. A great lawyer, hardly partisan at all, a scrupulous upholder of the independence of the judiciary. And yet, for many years, he was loathed by many of the English judiciary. 

The attacks on him by the senior judges were intensely personal – some of them would turn their backs on him and his wife at social functions. The language of their attacks on him were wholly inappropriate. Lord Lane, then the Lord Chief Justice when expressing his opposition to a Bill, giving solicitors rights of audience in the higher courts, said, ‘oppression does not stand on the doorstep with a toothbrush moustache and a swastika armband… it creeps up insidiously, step by step, until all of a sudden the unfortunate citizen realises freedom has gone.’  

The Effect of The Reforms:

The resistance to the reforms was based on the proposition that if ain’t broke don’t fix it, and the loss of the judicial figure at the heart of the executive. But it was very broke. Judges shouldn’t not be appointed solely by a politician, the final Court of Appeal should not be presided over by a member of the cabinet, and there should be a senior minister able to focus on justice issues.  

The judges did not resist the principle of a Judicial Appointments Commission. It provided statutory protection for the principle that judges were only to be appointed on legal merit. It also set out a detailed system which whilst it allowed politicians some leeway to say no to Judicial Appointments Commission recommendations to ensure they still had some stake in the process, it prevented the politicians from initiating names for appointment. 

Losing the prorogation case in 2019 in the Supreme Court led to the prime minister and his AG speculating the system should be replaced by a much more political system of selecting the senior judges. But by then it was too late – the system had been changed.  

Johnson, if he had still been prime minister, would no doubt have got his LC to produce for him the most deferential of the senior judges and Johnson, when office holder appointments came up and would have selected the one least likely to cause trouble.  

The creation of the Supreme Court was resisted by most judges. The Senior Law Lord, Lord Bingham took a different view. In his view, the separation of Britain’s highest court from parliament would remove any potential conflict that had arisen whenever law lords ruled on issues on which they had previously spoken at Westminster.  It would bring the workings of the court into the light. But he was adamant that the British court should not follow the American model and challenge parliamentary sovereignty.

His authority – few doubted he was the finest judge of his time – was a huge contributor to the formation of the court. To have the finest supporting the argument mattered.  

The final part of the constitutional jigsaw was the role of the Lord Chancellor. In the century before the 2005 Act, as I have described, the position of the Lord Chancellor had changed from a powerful figure respected by the judges, and the politicians to a person broadly out of tune with both groups. A rosy picture has grown up of the Lord Chancellor able to put his foot down and scotch any threat to the rule of law by simply saying no.  

The reality was different.  The power of individual Lord Chancellors within the government after the Second World War varied primarily by reference to their relationship with the prime minister.  Lord Kilmuir, appointed by Churchill, in order to remove him as Home Secretary, remained under Eden, Churchill’s successor.  They were not close, but he used his legal position as LC to malign effect. 

The legality of the use of force arose during the Suez Crisis. Eden relied not on the law officers for advice but instead on the view of the Lord Chancellor, Lord Kilmuir, that it was legal. This was not just private advice to Eden. The Lord Chancellor expressed it to the cabinet and in the House of Lords, recorded in Hansard.   

Knowing he would get unwelcome advice from the law officers, Eden deliberately did not seek their opinion. In the UK government their views on the law are authoritative. They cannot be trumped by any other lawyer, including the Lord Chancellor. On Tuesday 13 November 1956 the Attorney General, along with the Solicitor General, sent a minute to Eden complaining both that they had not been consulted and that they considered there was not a legal justification for the invasion. The note which has been published is scathing of Kilmuir’s views and threatens resignation if it ever happened again. That was the last time force was used without the law officers’ approval. And it was the last time the Lord Chancellor was able to freelance on the law and outflank the law officers.  

The role of the Lord Chancellor in government unbeloved by his two constituencies also led to the justice issues not having an adequate champion. The Lord Chancellor was, until 2003, based in the House of Lords. His prime role was to be there every afternoon presiding, albeit silently, over the legislative lords – a self-regulating house who would not accept the authority of a speaker to determine discipline in the chamber. And from time to time sitting as the chair of the final Court of Appeal in a committee room upstairs, albeit on increasingly a small number of cases because anything involving the state he would be conflicted out of.  

The time had unequivocally come for change. The separation of the judges and the politicians made it both inevitable and necessary, the head of the judiciary was a judge and the person who sat in cabinet a politician – finally a Minister of Justice. The Act made the office a minister of justice, but also gave the officeholder the obligation to defend the rule of law. In that latter role they are free from collective responsibility, a point it would be well worth reflecting in the ministerial code.  

THE CURRENT RELATIONS BEWEEN POLITICIANS AND THE LAW

In our system, democracy depends on law – to ensure elections are held and are free and fair; to prevent the winner of elections acting dictatorially by holding the winners to the law; to protect the most basic rights of the citizen – life, limb and freedom from detention without cause; and to ensure the dictates of parliament expressed in primary and secondary legislation are given effect to.  

It is important the law does not overreach. Policy is for the politicians. And having been in both professions, the job of being a politician requires much more skill, understanding, personal resilience and courage than being a lawyer.  There are bad politicians, and good lawyers. But the best politicians display a greater range of skill and personal attributes than the best lawyers. The lawyers who believe their skill and integrity are collectively much greater than those of the politicians are wrong. Politics is multi-dimensional. They have to lead and interpret the electorate. Law is one dimensional. Lawyers only have to interpret and apply a set of rules which they their opponent and the judge generally agree on.     

But it is absolutely critical to the way our society is ordered that the authority of the courts is accepted by the politicians. We must take care to ensure the authority of the law and that means critically the independence of the judiciary is protected. The CRA put those issues beyond daily debate. A few lawyers look back wistfully. But there is now no real debate about the principles in the CRA and no political pressure for any significant change.  

Trump told NBC on Sunday, ‘We have thousands of people that are [lawyers]… some of the worst people on earth… and I was elected to get them the hell out of here and the courts are holding me from doing it.’ And he expressed doubt about whether he had to uphold the constitution. President Trump’s refusal to obey court orders and his unleashing on judges who make these orders political vituperation are wrong and very, very dangerous. It weakens the arm of the state that holds the executive to the law, and thereby protects the citizen from oppression by the state. Take away that protection – and it is the courts that are the key protection – and the freedom we have enjoyed and regarded as our defining strength is put at risk. 

UK politicians characterising the judges as politically aligned is increasing. Lefty lawyers, enemies of the people, and an increasing demand by some conservative groups for a much more deferential judiciary. 

The constitutional reforms of 2005 which safeguard the judges and remove their dependence on the LC are now the bulwark constitutionally which defends justice in our system. 

The effect of the CRA 2005 is the debate about the role of the courts and the law can take place with no fear that the politicians can sweep aside the protection of the rule of law. Parliament can change the law. At least in the current climate they will never change the fundamentals of this law. That democracy depends on the rule of law is beyond argument and debate. The judges and the politicians had come to that conclusion themselves over the 20th Century.  The statute book caught up in the first decade of the 21st Century.   

And I’m very glad it did. 

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