Constitutional role of the judiciary if there were a codified constitution - Political and Constitutional Reform Contents


The role of the judiciary within the UK's constitutional arrangements is not set out in a single document and, like the constitution itself, has evolved from a variety of sources including Acts of Parliament, common law precedents and conventions.The most recent significant changes to the role of the judiciary are to be found in the Constitutional Reform Act 2005, which enshrined judicial independence in law.We welcome the greater separation of powers between the judiciary, the executive and the legislature that the Act has brought about.

The report does not look at the advantages and disadvantages of a codified constitution; instead, it examines the potential changes to the role of the judiciary should the UK ever have a codified constitution.The role of the judiciary would undoubtedly change should the UK decide to adopt a codified constitution, but the precise nature of that change will be difficult to assess until there is an agreed definition of the current constitutional role of the judiciary.

Should the UK move towards a codified constitution, one way of addressing the question of what powers the judiciary should have if they held a piece of legislation to be unconstitutional, would be to introduce the concept of a "declaration of unconstitutionality", which could work in a similar way to the declaration of incompatibility used under section 4 of the Human Rights Act 1998.

The report also argues that, if the UK were to adopt a codified constitution, there would be no need for a separate constitutional court.The Supreme Court could act as a form of constitutional court.

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Prepared 14 May 2014