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

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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© Parliamentary copyright 2014
Prepared 14 May 2014