Memorandum by the Association of Personal
Injury Lawyers
The Association of Personal Injury Lawyers was
formed 14 years ago to champion the rights of those injured through
negligence. We currently have over 5,400 members, both in the
United Kingdom and abroad. APIL campaigns for improved rights
for those who have been injured through no fault of their own
and seeks to highlight the kind of negligence which leads to personal
injury. APIL also provides training courses so that our members
can be as up to date as possible on topical legal issues. APIL
does not act as a trade union for its members, nor does it provide
endorsements or create business for them.
APIL has welcomed and contributed to the debate
surrounding constitutional reform, but has serious concerns about
schedule two of the Constitutional Reform Bill. The Government
has stated that in the future, the Secretary of State for Constitutional
Affairs may be a member of the House of Commons rather than the
Lords, as at the moment, and may not be a lawyer. Schedule two
provides that whilst the Lord Chief Justice can make rules, he
must do so with the consent of the Secretary of State, who can
veto any rules and also impose his own, which must be implemented
by the Lord Chief Justice. This is a change from the current system;
at present, the Lord Chancellor, although a member of the Cabinet,
is a high ranking lawyer; he is obliged by judicial oath to act
in accordance with his duties and is equal in rank to the Chancellor
of the Exchequer, the Home Secretary and the Foreign Secretary.
Whilst a rule making Lord Chancellor is part of the Executive,
his status within the Cabinet should usually ensure his judicial
independence.
APIL is concerned that the proposed changes
will breach one of the core principals of this country's legal
system, which is that there must be a separation of power between
the judiciary and the executive. The reason for this is that whilst
the Bill contains a "guarantee of judicial independence"
APIL concurs with the opinion voiced by Julian Samiloff, in his
article, "Crisis in the constitution" (Legal Executive
Journal, April 2004), in which he states that "the Bill
exposes the judiciary to a real risk that they will be in the
future subject to political pressure because the Lord Chancellor's
position would pass to a junior minister . . . unable to resist
internal pressures from more senior cabinet colleagues".
Even Lord Carlisle [Hansard, 8 March,
col 1066] has stated that "the Secretary of State for Constitutional
Affairs will be close to the bottom in the Cabinet, be an ambitious
politician and be greatly subject to the views of the Home Secretary
. . . He may have no legal background . . . [and] . . . is far
more open to political interference".
Schedule two, as currently drafted, thus allows
for the judiciary to effectively become a vehicle for merely implementing
and enforcing government policy through the courts.
APIL will be drafting an amendment to the Bill
to overcome this concern and this will be forwarded to members
of both houses of parliament in due course.
If members of the committee have any questions
about this issue then please contact Lorraine Gwinnutt, Head of
Legal and Public Affairs, so that clarification of APIL's position
can be offered.
Denise Kitchener
Chief Executive
15 April 2004
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