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

2  The current role of the judiciary


5. 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 evolvedand continues to evolve from a variety of sources including Acts of Parliament, common law precedents and conventions.Professor Roger Masterman, of Durham University, and Dr Jo Murkens, of the London School of Economics and Political Science, citing the nineteenth century constitutional scholar A.V. Dicey, stated:

    In the absence of a codified constitution guaranteeing its status the role and powers of the judiciary in the UK constitution have traditionally had to be inferred or induced from particular judicial decisions.[1]

6. The evidence we received supports the interpretivenature of the judiciary's role in the UK. Dr Patrick O'Brien,of University College London, stated that the judiciary "adjudicate disputes impartially and independently based on the law".[2]This traditionally interpretive role has evolved in the light of the different powers Parliament has conferred upon the judiciary.In some instances, this has led to a judicial role more akin to that in countries that have codified constitutions.Professor Andrew Le Sueur, of the University of Essex, gave us some examples of the role the judiciary already havein relation to constitutional matters in the UK.These include:

    determining legal disagreements about the respective powers of different institutions within the constitution, for example between the UK Parliament and the UK Government, or between the central and local government;

    dealing with legal questions about the division of powers between the UK and the European Union, under the guidance of preliminary rulings by the European Court of Justice;

    adjudicating on legal questions about the exercise of powers by executive and legislative institutions in Scotland, Wales and Northern Ireland in accordance with the devolution settlements created by the UK Parliament;

    protecting fundamental rights of individuals, including those in the Human Rights Act 1998, taking into account the case law of the European Court of Human Rights. [...]

    judicial review of executive action and delegated legislation, ensuring that public bodies remain within the powers conferred on them by Acts of Parliament and operate in accordance with judge-made legal principles of (for example) fairness and rationality.[3]

The Constitutional Reform Act 2005

7. The Constitutional Reform Act 2005 enshrined the independence of the judiciary in statute, but did not change the role of the judiciary.The Act included a duty on Ministers to uphold the independence of the judiciary and also made significant changes to the role of the Lord Chancellor, whosejudicial functions were transferred to the Lord Chief Justice for England and Wales, who is the head of the judiciary in England and Wales and who is now responsible for the training, guidance and deployment of judges in England and Wales.An independent Judicial Appointments Commission was set up to select candidates for judicial office. An independent Supreme Court was also established, which replaced the House of Lords as the final Court of Appeal.[4]

8. Under the Constitutional Reform Act, serving Supreme Court judges are disqualified from sitting or voting in the House of Lords.Lord Hope, when commenting on the impact of this, said that he did not think that it affected the way in which judges did their jobs.He said:"for those actually serving as judges, I think it does not matter one way or the other, frankly, because the judges are not involved with the business of the House anyway".[5]Lord Phillips stated: "I would go a little further and say that the whole object of moving the judges out of Parliament into a Supreme Court was to make the separation of powers transparent."[6]

9. Whilst the Constitutional Reform Act brought about a more explicit separation of powers between the judiciary, the executive, and the legislature, we heard from Professor Le Sueur that the changesmeant that "the judiciary no longer has serving members in the House of Lords able to contribute to debates there".[7]He made the point that Parliament may have lost some valuable input from the judiciary, stating: "I am sure many senior members of the judiciary feel that something important has been lost".[8]

10. Professor Robert Hazell, of University College London, statedthat there is now a "much more systematic and constructive engagement between the judiciary and Parliament, mainly through parliamentary Select Committees,"[9] and that members of the judiciary have been much more willing to appear before Select Committees since the Constitutional Reform Act.Professor Hazell told us:

    We have done an analysis of judges being invited to give evidence to parliamentary Select Committees and I was very surprised at how frequent it is. Since 2006 when the Act came into force, there have been about 120 judicial appearances before parliamentary committees by serving judges. If you add in retired judges and international judges, it comes to 280 judicial appearances.[10]

In 2012, the Judicial Executive Board published Guidance to Judges on Appearancesbefore Select Committees.This makes it clear that the appearance of judges before Select Committees is still regarded as unusual:

    For the most part parliamentary business, including the business of select committees, is conducted without the involvement of the judiciary, and without the appearances of judges before them. Such appearances should be regarded as exceptional. Indeed, until the last quarter of the twentieth century there were virtually no appearances by judges before parliamentary committees.[11]

11. Although serving Supreme Court judges cannot sit or vote in the House of Lords, those Supreme Court judges who are currently members of the House of Lords can resume an active part in proceedings after they retire.However, Supreme Court judges who were not previously members of the House of Lords will not automatically have a seat in the Lords on their retirement

12. We welcome the fact that the Constitutional Reform Act 2005 enshrined judicial independence in law.We also welcome the greater transparency in the separation of powers between the judiciary, the executive and the legislature that the Act brought about.

1   Professor Roger Masterman, Dr Jo Murkens (CRJ 003) Back

2   Dr Patrick O'Brien(CRJ 014) Back

3   Professor Andrew Le Sueur(CRJ 009) para 10 Back

4   In Scotland the general rule is that civil appeals come to the UK Supreme Court, but the High Court of Justiciary in Scotland sitting as an appeal court is the final court of appeal for criminal cases. Back

5   Q226 [Lord Hope] Back

6   Q226 [Lord Phillips] Back

7   Professor Andrew Le Sueur(CRJ 009) para 15 Back

8   Q29 [Professor Andrew Le Sueur] Back

9   Q58 [Professor Robert Hazell] Back

10   Q58 [Professor Robert Hazell] Back

11   Judicial Executive Board, Guidance to Judges on Appearances before Select Committees, (October 2012), p 2 Back

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Prepared 14 May 2014