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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