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

3  Approaches to codification

Different models of codification

13. In the work they are doing for us,Professor Robert Blackburn and Dr Andrew Blick, of King's College London,are exploring three basic models for codifying the constitution.These are described below.
A constitutional code, which would be a non-legal code setting out the essential elements and principles of the constitution.It is envisaged that the document would be sanctioned by Parliament, but that it would not have statutory authority.

A consolidation Act, which would codify the major elements of existing constitutional law and practice into one Act of Parliament.It is not envisaged that this Act would have a higher status in law.

A fully written constitution, which would codify the major elements of existing constitutional law and practice into a constitution of the United Kingdom, with a higher status in law and special amendment procedure.

14. Throughout the inquiry, we considered the different ways in which these models could impact on the judiciary's role.In addition, some common threads of thinking emerged with regards to other models and devices that we should take into consideration when looking at the role of the judiciary if the UKwere to have a codified constitution.

15. One of the main questions that emerged whenthinking about models for codification is whether a codified constitution should have a higher status in law.Such a constitution is defined by Dr Mark Elliott, of the University of Cambridge, as: "One that has a status making it unique within the legal system."He continues:

    Within such a system, all other law exists in the shadow of—and may be valid only to the extent that it is consistent with—the constitution. Within a hierarchical constitution, it may (but is not necessarily) the role of the judiciary to determine whether other law is compatible with the constitution—that is, whether it is constitutional—and to hold unconstitutional laws invalid.[12]

He also told us that the current model for the UK's constitution,"may be considered to be 'flat' in the sense that the constitution itself has no status that makes it superior to any other kind of law".[13]

16. It has, however, been suggested that some statutes should be held in higher regard than others. For example, in Thoburn v Sunderland City Council,[14] in 2002, Lord Justice Laws stated:

    In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental. ... And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes.These two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.[15]

Lord Justice Laws continued by giving the following examples of constitutional statutes:

    Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA [Human Rights Act], the Scotland Act 1998 and the Government of Wales Act 1998. The ECA [European Communities Act] clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law.[16]

17. Another question that emerged was whether the UK should have a Bill of Rights—that is a document which would set out alist of the fundamental rights and freedomsof the UK's citizens—if it were to adopt a codified constitution.Lord Hope said that rights and freedoms are "absolutely the anchor of what the constitution is all about".[17]He added that a Bill of Rights could:

    either take the form of following what we have in the Human Rights Act here, or it can be redesigned—either a simplified or expanded version of what those rights are—but it should be at the forefront, because the individuals within the state are being protected by the constitution.[18]

Lord Hope and Lord Phillips agreed that a codified constitution without a Bill of Rights would be of only limited value.Lord Phillips stated: "To have a constitution without a bill of rights unless you have an alternative in place would horrify me".[19]

18. Sophie Boyron, of the University of Birmingham,indicated that a constitution without a Bill of Rights would have only limited scope.She told us that,"without a Bill of Rights, the courts would only be able to ensure compliance with the procedural requirements of the legislative procedures or the constitutional principles clearly enounced in the constitution".[20]

The degree of change to the judiciary's role

19. We consideredthe ways in which the role of the judiciary could change if the UK were to move towards a codified constitution, looking at the different models of codification mentioned above. Dr Michael Gordon,of the University of Liverpool, commented: "how the existing relationship between Parliament and the courts would be altered (if at all), would depend on the content of the codified constitution we chose to adopt".[21]

20. We heard that, if the UK were to move towards a fully codified constitution, the judiciary could be given a strong role in upholding that constitution.Professor Dawn Oliver, of University College London, stated that, "Most countries with written or codified constitutions do have supreme courts that have power to strike down legislation or to refuse to give effect to legislation that they consider to be unconstitutional".[22]For example, the judiciary in the USA and Germany have strong powers to strike down legislation which is found to be incompatible with their constitutions.We consider strike-down powers further in Chapter 4.

21. However, we also heard thatthe judiciary in the UK would not necessarily have to have a more proactive roleif the UK had a codified constitution.Professor Anthony Bradley QC told us that, "There are some sorts of written constitution that would not affect the judiciary at all, because it would be consolidating or re-enacting existing laws".[23]

22. We were also told that, even if the UK did not adopt a fully codified constitution, the role of the judiciary could still change.Dr Andrew Blick, ofKing's College London, told us that "the judiciary could develop a greater constitutional role for itself without full codification having taken place".[24]This is partly because there have already been some examples of aspects of our constitution being written down: for example, the devolution Acts.[25]When we asked Lord Hope about the status of the devolution Acts,he said:

    I think one has to regard them as a kind of constitution because they set out all the things you would expect to find in a constitution. They define the

    powers of the legislature, they define the powers of the Executive, they incorporate human rights by adopting the convention rights as part of the limitation on the powers of those two bodies, and they give powers to the courts to supervise the system. It is a complete package that contains everything that you would expect to find in a constitution. It does not describe itself as that, but that is the practical reality.[26]

23. As a result of the devolution settlements being written down in Acts of Parliament, actions of Ministers and processes within the devolved Administrations have been brought before the courts.One such example is the case of Robinson v Secretary of State for Northern Ireland.[27]The case arose from the failure of the Northern Ireland Assembly to elect a First Minister and a Deputy First Minister within a six-week period, as required by section 16(8) of the Northern Ireland Act 1998.A case was brought to establish whether the election of the First Minister and Deputy First Minister, after that six week period, was legal.This case is particularly noteworthy when considering the implications of a codified constitution as, for example, at UK Parliament level there would be no question of the courts getting involved and any difficulties would be resolved by political negotiation. However, as a result of 'codifying' the rules in the Northern Ireland Act 1998, it fell to the courts to decide whether or not the Northern Ireland Executive was properly constituted.

24. When asked whether writing down a constitution transferred power away from elected representatives to the judiciary, Lord Phillips stated:

    I think it does ... the minute you have a written constitution that is going, to some extent, almost inevitably, [to] impose restrictions on what Parliament can properly do. Then that opens the door to judges being asked to rule on whether or not Parliament has acted properly within the framework of the constitution.[28]

25. The role of the judiciary would undoubtedly change should the UK 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.In our terms of reference we set out to explore the current constitutional role of the judiciary but this needs further work.

26. Even if a codified constitution envisaged no change in the role of the judiciary, writing down the current constitutional arrangementswould in itself continue and build uponthecurrent interpretativerole of the judiciary in the UK's constitutional settlement.

12   Dr Mark Elliott (CRJ 002) para 4 Back

13   Dr Mark Elliott (CRJ 002) para 5 Back

14   Thoburn v. Sunderland City Council [2003] Q.B. 151, Laws L. J Back

15   Thoburn v. Sunderland City Council [2003] Q.B. 151, Laws L. J Back

16   Thoburn v. Sunderland City Council [2003] Q.B. 151, Laws L. J Back

17   Q186 [Lord Hope] Back

18   Q186 [Lord Hope] Back

19   Q186 [Lord Phillips] Back

20   Sophie Boyron (CRJ 008) Back

21   Dr Michael Gordon (CRJ 007) para 12  Back

22   Q156 [Professor Dawn Oliver] Back

23   Q46 [Professor Anthony Bradley] Back

24   Dr Andrew Blick (CRJ010) para 8 Back

25   Northern Ireland Act 1998, Northern Ireland (St Andrews Agreement) Act 2006 and Northern Ireland Act 2009, the Scotland Acts 1998 and 2012 and the Government of Wales Acts 1998 and 2006 Back

26   Q188 [Lord Hope] Back

27   [2002] UKHL 32 Back

28   Q216 [Lord Phillips] Back

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Prepared 14 May 2014