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]
A CODIFIED CONSTITUTION THAT RETAINS
PARLIAMENTARY SOVEREIGNTY
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.
STRIKE-DOWN POWERS
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]
DECLARATION OF UNCONSTITUTIONALITY
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.
LITTLE OR NO JUDICIAL REVIEW POWERS
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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