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

6  Consultation with the judiciary

71. Wealso considered what forms of consultation with the judiciary would be necessary to ensure that the legal and judicial implications of codifying the constitution were taken into account.

72. Given that the judiciary would have some role in upholding a codified constitution, it would seem sensible to consult them.In its report on relations between the executive, the judiciary and Parliament, the Lords Constitution Committee raised concerns about circumstances in which the Government had announced a policy or introduced a bill without apparently being sufficiently aware of the impact of the initiative on the fundamentals of the constitution. The Committee referred specifically to the announcement in 2003 that the office of Lord Chancellor was to be abolished and that a Supreme Court of the United Kingdom was to be established, stating that this announcement "took place without any apparent understanding of the legal status of the Lord Chancellor and without consultation with the judiciary (or anyone else outside government)."[76]

73. However, the judiciary may be reluctant to comment on the content of a codified constitution.Lord Phillips stated that "the judiciary tend to be a bit coy about expressing views in relation to proposed legislation that has a political aspect."[77]Lord Hope stated that "I think that judges would be very reluctant to become involved in anything that would give rise to risk to their judicial independence, so they would rather leave it to you to deal with that".[78]

74. In his written evidence,Professor Brice Dickson, of Queen's University Belfast,states: "It would be unwise for judges to comment on potential provisions in a codified Constitution because they might then have to recuse themselves."[79]He highlighted that asking the judiciary in Northern Ireland to comment on proposals would be difficult given that "it would inevitably involve them in issues that are even more politically sensitive in Northern Ireland than in Great Britain".It would be likely that if the UK were to have a written constitution there would be a separate Bill of Rights for Northern Ireland, which could put the judiciary in a more politically sensitive position.

75. Lord Phillips said that the judiciary may be more willing to comment and express opinions under 'Chatham House rules'.He stated: "You can perhaps get UCL or somebody

to set up a discussion under Chatham House rules to which judges are invited, which gives you some indication of how judges would feel about proposals."[80]

76. While the judiciary may not be willing to comment on what a codified constitution should contain, they may be more willing to comment on the implications of the proposals.Professor Bradley QC stated:

    My advice would be different when the general structure of a new constitution had been settled through the political process, and a subsidiary question arose of fitting the existing judiciary within that structure.Plainly the judges would protest if, for instance, a new constitution were to erode their independence or to diminish their existing role, for instance by taking away the power of courts to interpret legislation or the sentencing of criminals.[81]

77. Consultation with the judiciary about constitutional change that affects them is vital.However, it is also difficult, because the judiciary are rightly wary of commenting publicly on legislation that they may have to interpret.It would be understandable if the judiciary were unwilling to comment on the contents of a codified constitution, but it would be important to find a way of hearing their views on the implications of the proposals once the general structure of the constitution had been agreed.If necessary, some of the discussion could take place under Chatham House rules.Retired members of the judiciary would also be likely to feel freer to offer their opinions than those still serving as judges.

76   Constitution Committee, Sixth Report of Session 2006-07, Relations Between the Executive, the Judiciary and Parliament, HL Paper 151, para 12  Back

77   Q225 [Lord Phillips] Back

78   Q225 [Lord Hope] Back

79   Professor Brice Dickson (CRJ 016) Back

80   Q225 [Lord Phillips] Back

81   Professor Anthony Bradley QC (CRJ 011) Back

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Prepared 14 May 2014