This paper critically assesses a recent and significant constitutional change to the British judicial system. The Constitutional Reform Act 2005 swept away more than a thousand years of constitutional tradition by significantly reforming the ancient office of Lord Chancellor, which straddled all three branches of government. A stated goal of this legislation was to create more favorable external perceptions of the British constitutional and justice system. But even though the enacted legislation does substantively promote this goal, both by enhancing the separation of powers and implementing new statutory safeguards for judicial independence, the process of constitutional reform did not comport with it. The reform process suffered from undue speed, excessive secrecy, and failure to ensure adequate consultation and debate on the reform proposals. It also created an atmosphere of distrust that not only forced the government's retreat from its initial goal of entirely abolishing the office of Lord Chancellor, but also failed to achieve public confidence that the reforms were needed as a matter of reasoned principle. Like the game of Poohsticks, chance played too great a role in the constitutional reforms. This flawed process is inconsistent with the goal of improving external perceptions of justice, fairness, and judicial independence from political pressure. These recent constitutional reforms in the United Kingdom are worthy of American attention because external perceptions of the justice and fairness of the American constitutional system are growing in importance in an era in which the United States, like the United Kingdom, seeks to export its democratic values across the globe and struggles to ensure the appropriate level of judicial independence. Increasingly, it matters not only that justice be done, but also that it must be seen to be done.
Susanna Frederick Fischer, Playing Poohsticks with the British Constitution? The Blair Government's Proposal to Abolish the Lord Chancellor, 24 PENN. ST. INT’L L. REV. 257 (2005).