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

Conclusions and recommendations

The current role of the judiciary

1.  We welcome the fact that the Constitutional Reform Act 2005 enshrined judicial independence in law. We also welcome the greater transparency in the separation of powers between the judiciary, the executive and the legislature that the Act brought about.(Paragraph 12)

Approaches to codification

2.  The role of the judiciary would undoubtedly change should the UK adopt a codified constitution, but the precise nature of that change will be difficult to assess until there is an agreed definition of the current constitutional role of the judiciary. In our terms of reference we set out to explore the current constitutional role of the judiciary but this needs further work.(Paragraph 25)

3.  Even if a codified constitution envisaged no change in the role of the judiciary, writing down the current constitutional arrangements would in itself continue and build upon the current interpretative role of the judiciary in the UK's constitutional settlement. (Paragraph 26)

Impact of changes to the role of the judiciary

4.  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 incompatibility used 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.(Paragraph 47)

5.  Before the UK could move towards a codified constitution there would need to be a precise definition of the 'rule of law'.(Paragraph 52)

6.  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.(Paragraph 64)

Aseparate constitutional court?

7.  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. (Paragraph 70)

Consultation with the judiciary

8.  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. (Paragraph 77)

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Prepared 14 May 2014