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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