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

4  Impact of changes to the role of the judiciary

27. Wealso considered what powers the courts should have if they held that a piece of legislation was unconstitutionaland what the impact would be of these powers on existing constitutional doctrines and practices, including executive and legislative power and judicial review.We also considered what we could learn, in this context, from the interaction between the UK courts and the European Court of Justice and the European Court of Human Rights.

Parliamentary sovereignty

28. We were told by Dr Michael Gordon, of the University of Liverpool, that "the present status of parliamentary sovereignty is the subject of vibrant constitutional debate in the UK".[29]Parliamentary sovereignty was defined by A.V. Dicey as follows:

    The principle of Parliamentary sovereignty mean neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.[30]

It could be argued that the lack of any meaningful separation of powers between the Government and Parliament renders the concept of parliamentary sovereignty otiose.In practice, a Government, with a strong majority, controls Parliament and parliamentary sovereignty could be seen as the vehicle for the will of the Government.

29. Dr Gordon drew our attention to the fact that "UK courts are now required to assess the compatibility of Acts of Parliament with EU law and ECHR rights, disapplying legislation that violates the former".[31]The devolution settlements have also had an impact by transferring power from Westminster to Holyrood, Cardiff Bay and Stormont.Dr Gordon stated: "the modern devolution of legislative power to Scotland, Wales and Northern Ireland can ostensibly be seen to challenge the traditional Diceyan notion that Parliament can make or unmake any law whatever".[32]

30. But Dr Gordon's examples do not alter the principle of parliamentary sovereignty, becausea majority in Parliament can repeal any of the laws implementing the changes.A prime example of when it has done so is during times of political deadlock in Northern

Ireland, when the UK Government abolished (1973) or suspended (2000, 2001 and 2002-2009) the Northern Ireland Assembly.[33]The introduction of a codified constitution in the UK could lead to a debate about the separation of powers.

31. We heard that there are political and cultural reasons why some countries with a codified constitution have moved away from the notion of a sovereign Parliament.Dr MichèleOlivier, of the University of Hull, told us that when South Africa was devising a constitution in 1996, it purposely "moved away from parliamentary sovereignty" because the Parliament lacked legitimacy.She commented:

    We had a Westminster system in place—parliamentary sovereignty, where the British constitutional law is common law—but because it was not a proper democratic system and it entrenched minority power, there was a lack of legitimacy in Parliament and in the courts. That is one of the reasons to move away from political control to legal control, where you have a Constitutional Court guarding the constitution and Parliament. [34]

32. Sometimes the move towards a model of constitutional sovereignty has come about because a dominant Parliament has acted in a way which would be seen by most people as contrary to basic human rights.An example of this is the actions of the German Parliament in and after 1933.After the Second World WarGermany moved towards a system inwhere the constitution is sovereign because, Professor John Bell, of the University of Cambridge told us, of "the experience of dictatorship in which Parliament voted to support a government which seriously infringed fundamental rights".[35]

33. Neither of these reasons for moving away from the notion of a sovereign Parliament applies to the UK.

34. We heard that other countries have benefited from having a model of constitutional sovereignty.Professor Bell stated that:

    In countries such as France and Germany, for example, one of the roles of the Constitutional Court is to protect procedure in Parliament from being railroaded by the Government, so when there are challenges to procedure, they are often challenges to the way the Executive has tried to railroad legislation, or tried to pass legislation without proper parliamentary scrutiny.[36]


      35. Some would argue that if the UK tried to retain parliamentary sovereignty alongside a codified constitution, there would be implications for the status of the constitution; others would argue that parliamentary sovereignty is incompatible with a codified constitution.DrGordon told us that, "the constitution would be open to amendment by simple Act of Parliament, rather than entrenched and subject to modification only in accordance with a special procedure of some variety".[37]

      36. There are advantages in retaining parliamentary sovereignty. It would, for example, sit well within the UK's traditionally flexible approach to constitutional change. Dr Patrick O'Brien said:

        British constitutional culture is very attracted and committed to the idea of parliamentary sovereignty. I would find it very surprising if that did not persist under a move to a written constitutional model…

      The other longstanding argument for attempting to retain parliamentary sovereignty is political legitimacy.It is seen as preferable to have democratically elected politicians rather than appointed judges having the final say when it comes to upholding the constitution.

      37. As part of our inquiry, we explored the interaction between a codified constitution and European Community law.We asked:

        Fabian Hamilton: In the German case…Solange I, the German Federal Constitutional Court ruled that, in the hypothetical case of a conflict between Community law and the guarantee of fundamental rights under the German constitution, German constitutional rights prevailed over any conflicting European law. If the UK adopted a codified constitution, would we be able to take a similar position on Community law?

        Professor Bell: I do not think there would be a difficulty at all.

        Professor Oliver: What I think is interesting about the Solange case is that the response of the European Court has been, "You don't need to worry: we all share the same values. It is not going to be a threat." There is a sort of dialogue and repositioning going on between that court and the courts of the member states.[38]

      38. The German notion that having a codified constitution may enable a country to take a stronger position in the case of a conflict between its own constitution and European Community law did not appeal to Lord Phillips who told us:

        If you agree to set it up, as we did with the Strasbourg Court, and then say, "But we are not going to take any notice of it", then for my money you are disregarding the rule of law because you are simply tearing up the agreement you have made.[39]

      This view is strongly held. Alternatively, there is a view that if the UK were to have a codified constitution, that could make it easier to argue that UK constitutional rights should prevail over conflicting European Community law.


      39. As with parliamentary sovereignty, there are normally political, cultural and historical reasons for giving the courts power to strike down primary legislation and many countries with a codified constitution give the judiciary strong powers to decide whether legislation is compatible with their constitution and to strike down legislation which is found to be incompatible.Giving the judiciary the power to strike down unconstitutional legislation can be seen as the only way to give the courts the power fully to protect the constitution.We heard from Professor Dawn Oliver that one of the problems with judicial review of primary legislation, accompanied with strike down powers, is that it, "would expose the judges to political pressure and criticism, not only from politicians but also often from the press and sections of the public".[40]

      40. Within the current constitutional arrangements in the UK, the idea of striking down primary legislation which is 'unconstitutional' has received limited support from some senior judges. In the case R (Jackson) v Attorney General[41]Rt Hon Lord Steyn said:

        In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the … Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.[42]

      This view has attracted a certain amount of controversy, and Rt Hon Lord Binghamin his book The Rule of Lawstated:

        We live in a society dedicated to the rule of law; in which Parliament has power, subject to limited, self-imposed restraints, to legislate as it wishes; in which Parliament may therefore legislate in a way which infringes the rule of law; and in which the judges, consistently with their constitutional duty to

        administer justice according to the laws and usages of the realm, cannot fail to give effect to such legislation if it is clearly and unambiguously expressed.[43]

      41. There is no power for the judiciary in the UK to strike down primary legislation, but the judiciary exercise wide statutory interpretative powers.Lord Phillips, when commenting on the strength of this interpretative role, said:

        One would be considering a constitutional crisis before you could envisage the courts purporting to strike down primary legislation. Before you got that, the courts would say, "Parliament couldn't possibly have meant that because—" and therefore would have given an interpretation to the legislation that it, faced with it, couldn't bear it, but would have chucked the gauntlet back to Parliament, saying, "We have pulled you back from the brink. Are you really going to persist with this?" That is what the House of Lords did as the Privy Council in Anisminic. They threw down the gauntlet and it was not taken up. Judges do have ways of finessing the intention of Parliament from time to time.[44]


      42. One possible way for the UK to attempt to retain parliamentary sovereignty, should it adopt a codified constitution, would be to use a 'declaration of unconstitutionality'.This would be a variation on the method that is currently used undersection 4 of the Human Rights Act 1998, whereby the courts can declare that a piece of UK legislation is incompatible with a provision of the European Convention on Human Rights.

      43. We were told that the main advantage of using a 'declaration of unconstitutionality' was that it would fit in well with the UK's political culture.Lord Lester QC said:

        The beauty of that very British and very parliamentary system is that it does not make the judges the sole guardians of basic rights and freedoms. It engages both Houses and the Executive.[45]

      Professor Le Sueurcommented that it would be "preferable [to striking down legislation] and politically realistic"[46] to use this method when a piece of legislation was found to be unconstitutional.

      44. Another advantage of 'a declaration of unconstitutionality' is that it would prevent a gap from emerging in the law.Lord Lester QC told us:

        if you strike down a piece of legislation, you create a gap in the system. If you make a declaration of incompatibility, there is no gap because the offending

        piece of legislation remains in force until it is struck down. In that sense, you have the advantage of continuity but an advantage that is flawed because the provision has been found to be defective, to be unlawful.[47]

      45. We also heardabout onedisadvantage of the current system of declarations of incompatibility, which could also apply to a system of declarations of unconstitutionality.When a declaration of incompatibility is made under section 4 of the Human Rights Act, there is no legal obligation on Parliament to repeal or amend the piece of legislation in question.Rt Hon Lord Hoffmann explained in the case of Ex Parte Simms:[48]

        Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal.[49]

      46. Thus, if the courts were to declare a piece of legislation unconstitutional, there would not necessarily be an obligation on Parliament to rethink that piece of legislation.The South African constitution offers a model that could address this issue.Dr MichèleOlivierexplained how the South African model works:

        We now use various methods of interpretation to avoid a legal vacuum. It [the Act] is referred back to Parliament to make arrangements to bring the legislation in line with the constitution within a period of six months or whatever. In the meantime, they will use what we called "reading in" to indicate how the provision should be interpreted in the meantime to regulate the situation in a way that will not violate the provisions of the constitution.[50]

      47. Should the UK move towards a codified constitution, one way of addressing the question of what powers the courts should have if they held a piece of legislation to be unconstitutional would be to introduce the concept of a 'declaration of unconstitutionality'.This could work in the same way as the declaration of incompatibilityused under section 4 of the Human Rights Act 1998 for situations in which UK legislation is held to be incompatible with the European Convention on Human Rights.

      The rule of law

      48. Section 1 of the Constitutional Reform Act refers to "the existing constitutional principle of the rule of law".However, there is no statutory definition of the rule of law and there is considerable scholarly disagreement about what exactly the term means.The

      House of Lords Constitution Committee stated in its report on Relations between the executive, the judiciary and Parliamentin July 2007that "the rule of law remains a complex and in some respects uncertain concept."[51]

      49. Amy Street, in the Constitution Society report Judicial Review and the Rule of Law said that the differing views on the meaning of the rule of law can currently be divided into two theories:

        Formalist or 'thin': under these theories the concept requires that laws must merely comply with certain formal rules inorder to be valid, irrespective of their content; a repressiveand murderous regime could meet the rule of law under thisdefinition.

        Substantive or 'thick': this version of the rule of law judges the content as well as the form of 'law', requiring substantiverights to be recognised.[52]

      50. Lord Bingham, who discusses various interpretations of the rule of law in his book on the subject, describes the "core existing principle of the rule of law" as follows:

        that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.[53]

        He also explores eight suggested principles of the rule of law:

      ·  The law must be accessible and so far as possible intelligible, clear and predictable.

      ·  Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.

      ·  The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.

      ·  Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.

      ·  The law must afford adequate protection of fundamental human rights.

      ·  Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.

      ·  Adjudicative procedures provided by the state should be fair.

      ·  The rule of law requires compliance by the state with its obligations in international law as in national law.[54]

      51. Richard Gordon QC told us:

        If you don't have a rule for what the rule of law means, some kind of broad yardstick for what it means, you are going to get the judges possibly being able to hold, in some shape, size or form, that the rule of law is not being upheld in certain contexts and that paves the way for tension.[55]

      52. Before the UK could move towards a codified constitution there would need to be a precise definition of the 'rule of law'.

      Judicial review

      53. This section examines how a codified constitution could change the judiciary's current role with respect to their judicial review powers.Judicial review is an aspect of the rule of law in action and is a process by which individuals, businesses and other affected parties can challenge the lawfulness of decisions or actions of public authorities.If the judiciary were to be given a role in upholding a codified constitution, it might follow that they would have powers to judicially review primary legislation on constitutional grounds: in other words, the judiciary could be asked to rule on whether an Act of Parliament conformed to the provisions of the codified constitution.

      54. There are already some precedents for judicial review of primary legislation in the UK.Membership of the European Communities since 1972 has given the UK courts power to judicially review Acts of Parliament which are thought to be in conflict with European Community law.Whilst the courts do not have the power to strike down primary legislation which is found to be in conflict with directly effective European Union law they do have the power to disapply an Act of Parliament should it be found to be in conflict.[56]

      55. With regards to the Human Rights Act, a case for judicial review of primary legislation can be brought if someone thinks that their convention rights have been infringed.The courts then have the power either to read the legislation in line with the European Convention on Human Rights or to declare the piece of legislation incompatible, as discussed above.


      56. Whilst some countries give the courts the power within judicial review decisions to strike down primary legislation (as discussed above), other countries with codified

      constitutionshave only limited judicial review powers—notably, the Netherlands, Finland and Norway—but these countries normally have a higher level of parliamentary scrutiny before legislation is passed.For example, Professor Oliver told us:

        Finland relies heavily on intra-parliamentary scrutiny of bills for constitutionality before they are enacted. Their uni-cameral Parliament has a highly respected Constitutional Law Committee consisting of members of the chamber, which includes some eminent lawyers. They scrutinise bills for compatibility with the constitution, they call experts to give evidence to them, they operate in a non-party political way, and they report to Parliament. Their reports are respected by government, which will normally amend the provisions that the Committee has found to be unconstitutional before the bill is passed.[57]

      57. Again, when considering whether limited judicial strike-down powers and a higher level of parliamentary scrutiny would work in the UK, we considered the current nature of UK politics, which is significantly different from what Professor Oliver describes as the "fairly consensual political system"[58]seen in some of the countries where this system works.Professor Oliver told us: "Given the adversarialnature of politics in the House of Commons, continued reliance in the UK on intra-parliamentary scrutiny, even on the Finnish model, would only work in the second chamber, and then only if the second chamber were not politically adversarial."[59]

      58. Other constitutional models provide examples which are more likely to be suited to the UK, such as the South African model of a system of judicial review with limitations on the power of the courts to strike down legislation. The Canadian model, whereby the constitution places certain limits on the types of legislation that the courts can judicially review may also be a model which would be more acceptable in the UK if there were a codified constitution.

      Pre-enactment review

      59. We also looked at whether, if the UK were to adopt a codified constitution, the courts should be able to assess the constitutional validity of a Bill—that is to say, whether the Bill accords with the constitution—before it becomes an Act.In his written evidence Lord Neuberger, President of the Supreme Court, highlighted this as an area "which needs to be looked at very carefully".[60]

      60. The devolution settlements already provide for a limited form of pre-enactment judicial scrutiny when deciding whether proposed legislation is within the legislative

      competence of the devolved institutions.DrGordon told us that "the Supreme Court now has the power to assess whether Acts of the Welsh Government, Scottish Parliament and Northern Irish Assembly are within legislative competence in advance on a reference".[61]

      61. We heard that there are potentially some benefits to pre-enactment review.Lord Hope said:

        The great advantage is that these issues will be resolved before the Bill is enacted and before anybody does anything. It is far better that these challenges, if they are to be mounted, should be put right at the front before the thing becomes law rather than have somebody challenging the measure after it has become law.[62]

      Sophie Boyron saidthat pre-enactment review may prevent constitutional damage, "in the sense that no unconstitutionality will have taken place prior to the Bill being declared to be unconstitutional or incompatible."[63]This makes it less likely that someone would be put in a position of disadvantage because of apiece of unconstitutional legislation.

      62. We also heardthat there are some disadvantages to having a system of pre-enactment review.A significant disadvantage would be that the mechanism could be used by opponents of a measure as a political tool to try to stop a Bill.Sophie Boyron told us: "in many countries where it exists, pre-enactment review is regarded to be the last obstacle the opposition can put across the path of a bill".[64]She went on to say that it was unlikely that extending pre-enactment review in the UK would suit the UK's political culture given the "abstract nature of the litigation and the politicized environment in which it often operates".[65]

      63. Another issue is that it could prove difficult to decide in abstract whether a Bill was constitutional.Issues might arise after enactment that simply were not thought about at the pre-enactment review stage.Lord Phillips stated:

        Pre-enactment review could work well in that scenario [talking about devolution issues]. I am much more doubtful about it if you are dealing with an issue that might involve a particular factual scenario, because it is not always easy to decide issues in isolation from particular facts.[66]

      Dr O'Brien told us that the constitutional model in the Republic of Ireland allows for a system of pre-enactment review where, "if the Bill is found to be constitutional, it is immunised from scrutiny for ever thereafter".[67]He continued that the difficulty with this was that "You can end up with bad statutes, or statutes that are good but are implemented badly, being immunised, and that's a problem".[68]

      64. Whilst the UK already has some forms of limited pre-enactment review in relation to devolution issues, it is unlikely that extending this to all legislation, in the event that the UK adopted a codified constitution, would suit the UK's political culture.

      29   Dr Michael Gordon (CRJ 007) para 4 Back

      30   A V Dicey Introduction to the Study of the Law of the Constitution (10th edn, 1959 by E C S Wade), p 39-40. Back

      31   Dr Michael Gordon (CRJ 007) para 4 Back

      32   Dr Michael Gordon (CRJ 007) para 4 Back

      33   For more information see - How Parliament Works, Robert Rogers and Rhodri Walters Works, 6th edition, 2006 Back

      34   Q157 [Dr Michèle Olivier] Back

      35   Professor John Bell (CRJ 013) Back

      36   Q156 (Professor John Bell) Back

      37   Dr Michael Gordon (CRJ 007) para 9 Back

      38   Q170 [Dr Patrick O'Brien] Back

      39   Q229 [Lord Phillips] Back

      40   Professor Dawn Oliver (CRJ 15)  Back

      41   [2005] UKHL 56 Back

      42   [2005] UKHL 56, para 102 (also see Lord Hope, [2005] UKHL 56 at paras 104-5 and Lady Hale, [2005] UKHL 56 at para 159) Back

      43   Tom Bingham, The Rule of Law, 2010, Penguin Booksp168 Back

      44   Q208 [Lord Phillips] Back

      45   Q49 [Lord Lester] Back

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

      47   Q52 [Lord Lester] Back

      48   [1999] UKHL 33 Back

      49   [1999] UKHL 33 Back

      50   Q165 [Dr Michèle Olivier] Back

      51   House of Lords Constitution Committee, Relations between the executive, the judiciary and Parliament, Sixth Report of the 2006-07 Session, para 24 Back

      52   Judicial Review and the Rule of Law Who is in Control?, The Constitution Society, Amy Street 2013 Back

      53   Tom Bingham, The Rule of Law, 2010, p 8 Back

      54   Tom Bingham, The Rule of Law, 2010  Back

      55   Q143 [Richard Gordon] Back

      56   SeeR v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 AC 603. Back

      57   Professor Dawn Oliver (CRJ 015) Back

      58   Q161 [Professor Dawn Oliver] Back

      59   Professor Dawn Oliver (CRJ 015) Back

      60   Lord Neuberger (CRJ 017) Back

      61   Q107 [Dr Gordon] Back

      62   Q202 [Lord Hope] Back

      63   Q107 [Sophie Boyron] Back

      64   Sophie Boyron (CRJ 008) Back

      65   Sophie Boyron (CRJ 008) Back

      66   Q205 [Lord Phillips] Back

      67   Q161 [Dr Patrick O'Brien] Back

      68   Q161 [Dr Patrick O'Brien] Back

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      Prepared 14 May 2014