5 A separate constitutional court?
65. We considered whether, if the UK
were to have a codified constitution, there would be a need for
a separate constitutional courtto rule on constitutional matters
or whether the Supreme Court could take on the functions of a
constitutional court.
66. We heard that there may be some
limited benefit to having a separate constitutional court.Professor
Bellcommented that, if the UK had a codified constitution, "the
question would arise whether those who are experts in commercial
law, property law or administrative law are the best people to
adjudicate on matters which are constitutionally sensitive".[69]Professor
Bradley QC told us that "The creation of such a court would
be justified only if, for whatever reasons, judges sitting in
the ordinary courts were thought to be unsuitable for, or incapable
of, deciding constitutional questions".[70]Having
judges with specific constitutional and political awareness in
a separate constitutional court may be advantageous from the point
of view of expertise.
67. Overwhelmingly, however, we heard
that there would be major advantages to allowing the Supreme Court
to adjudicate on constitutional matters.Lord Neuberger, President
of the Supreme Court, told us:
Whilst it is the practice in many
civil law countries to have separate Supreme Courts and Constitutional
Courts (and sometimes also separate Supreme Administrative Courts),
that is not the pattern in common-law countries. Rather, the practice
is for constitutional issues to be considered by the Supreme Court.
That would certainly be the model we would prefer. It works perfectly
well in countries whose judicial systems are very similar to ours,
such as Canada. Indeed, we already perform a constitutional role,
both in the Supreme Court (albeit to a limited extent) and the
Judicial Committee of the Privy Council.[71]
68. Lord Lester QC was also opposed
to creating a separate Constitutional Court because he believed
that the best judges should be knowledgeable about all areas of
law, not simply constitutional issues.He stated:
Once you have a constitutional court,
first of all, you are separating something called constitutional
issues from ordinary law. I believe that constitutional issues
are not so specialised that they require a court specially appointed
to deal with them. You cannot be a good public lawyer or constitutional
lawyer if you cannot interpret a contract. It is very important
that the judges who are interpreting the constitution know and
understand about general law, about tort or contract law, criminal
law and so on, and bring all that knowledge and experience to
interpret the constitution.[72]
Lord Phillips told us:"There
is a limit on judicial talent, and you might be spreading it a
bit thin if you said we have to have a completely separate court
to deal with constitutional issues".[73]
69. We considered the question of how
constitutional cases could be brought before the courts.Professor
Bradley QC told us:
There would need to be legislation
about what the powers of the lower courts would be. The powers
of the Supreme Court is one thing but one does not want every
district magistrate striking down, or pretending to strike down,
provisions of the constitution.[74]
Professor Le Sueur told us that one
method to be considered would be, "Requiring constitutional
law claims to start in the High Court with the possibility of
further courts [which]would enable legal arguments to be refined
if a case proceeds up the court hierarchy".[75]
70. Based on the evidence we received,
if the UK were to adopt a codified constitution, there would be
no need for a separate constitutional court.The Supreme Court
could adjudicate on constitutional matters.
69 Professor John Bell (CRJ 013) Back
70
Professor Anthony Bradley QC (CRJ 011) Back
71
Lord Neuberger (CRJ 017) Back
72
Q65 [Lord Lester] Back
73
Q199 [Lord Phillips] Back
74
Q66 [Professor Anthony Bradley] Back
75
Professor Andrew Le Sueur(CRJ 009) para 30 Back
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