Select Committee on Constitutional Reform Bill Written Evidence


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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