The House of Commons Political and Constitutional Reform Committee is undertaking an inquiry into the constitutional role the judiciary would play if the UK were to adopt a written constitution. (This is part of a wider-ranging inquiry concerning the potential codification of the UK’s constitution.) I have responded to the call for evidence that the Committee recently issued when announcing its inquiry into the judicial role. My written evidence to the Committee addresses two of the questions raised in the inquiry’s terms of reference, concerning the courts’ present role and their potential role under a codified constitution, and the powers that courts might exercise were they to find legislation unconstitutional.
I argue that the courts already have a substantial constitutional role, albeit that that role might change – and become greater – if a written constitution were to be adopted. However, I go on to argue that when it asks how the the courts’ role would change under a written constitution, the Committee in fact asks the wrong question. Ultimately, the extent to which a codified constitution would alter the position of the judiciary would turn upon the terms of such a constitution. The Committee should therefore be asking itself not how a codified constitution would alter the courts’ position, but what the courts’ position should ideally be, whether a written constitution would be necessary to achieve that ideal, and, if so, how such a constitution could most appropriately be framed in order to realize that objective.
It might turn out, for instance, that the sort of judicial powers sometimes associated with a written constitution would not be appropriate in the UK, because they would represent a sharp and unnecessary break with established constitutional principles and structures. That might not amount to an argument against a written constitution – but it might amount to an argument against a particular kind of written constitution. It is necessary, therefore, to acknowledge that the notion of a written, or codified, constitution is not a monolithic one – and that the judicial role within such a constitution can be conceived of in a variety of ways. We should, then, begin by deciding what sort of constitution we want. The role of judges within any constitutional system is function of the constitution’s design and specific terms; it is not something that follows straightforwardly from that the fact that the constitution is a “written” one.
My written evidence can be downloaded here, or viewed below.