The constitutional role of the judiciary under a codified constitution: report of the Political & Constitutional Reform Committee

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The House of Commons Political and Constitutional Reform Committee has published its report on The Constitutional Role of the Judiciary if there were a Codified Constitution (HC 802, 2013-14) (on which see also Andrew Le Sueur’s post on the UK Constitutional Law Blog). Perhaps unsurprisingly, the Committee does not come to any firm views, given the malleable parameters of its inquiry. As the Committee itself acknowledges, it is difficult to determine how the judiciary’s constitutional role would or should change until there is consensus about what its current role is or should be – a question which the Committee feels it needs to examine further – and about the form that a codified constitutional would take, and hence the role that such a constitution would ascribe to the judiciary.

The report is light on specific recommendations, but it does cover some useful ground. It notes, for instance, that the notion of codification is itself an elastic one, identifying three approaches that might be taken:

  • A constitutional code, which would be a non-legal code setting out the essential elements and principles of the constitution.It is envisaged that the document would be sanctioned by Parliament, but that it would not have statutory authority.
  • A consolidation Act, which would codify the major elements of existing constitutional law and practice into one Act of Parliament.It is not envisaged that this Act would have a higher status in law.
  • A fully written constitution, which would codify the major elements of existing constitutional law and practice into a constitution of the United Kingdom, with a higher status in law and special amendment procedure.

In doing so, the Committee canvasses the possibility of a form of written constitution that might co-exist with parliamentary sovereignty. In particular, it suggests that codification might be undertaken in a way that would stop short of giving UK courts constitutional strike-down powers. Instead, the committee floats the idea of a “declaration of unconstitutionality”, modelled on the declaration of incompatibility that can presently be issued under section 4 of the Human Rights Act 1998.

In the course of addressing these matters, the Report sets out a fascinating passage from the evidence of Lord Phillips – the former President of the UK Supreme Court – on the existing powers of the judiciary in relation primary legislation. Commenting on those powers – and, in particular, on whether they conceivably extend to refusing to apply or striking down an Act of Parliament – Lord Phillips said:

One would be considering a constitutional crisis before you could envisage the courts purporting to strike down primary legislation. Before you got that, the courts would say, “Parliament couldn’t possibly have meant that because—” and therefore would have given an interpretation to the legislation that it, faced with it, couldn’t bear it, but would have chucked the gauntlet back to Parliament, saying, “We have pulled you back from the brink. Are you really going to persist with this?” That is what the House of Lords did in Anisminic. They threw down the gauntlet and it was not taken up. Judges do have ways of finessing the intention of Parliament from time to time.

This frank acknowledgment of the realities of the relationship between judges and Parliament is important to our understanding of what the starting-point is for any debate about constitutional codification. In particular, Lord Phillips’ remarks – like recent Supreme Court decisions such as A v BBC [2014] UKSC 25, on which I commented in another post – remind us that the existing constitution, even if the Human Rights Act 1998 is left out of the picture, acknowledges substantial authority on the part of the courts to uphold fundamental rights and values.

That is of a piece with the view that Lord Hope – the Supreme Court’s former Deputy President – expressed to the Committee when he said that rights and freedoms are “absolutely the anchor of what the constitution is all about”. One question that must be confronted if any project of constitutional codification is to be undertaken is whether those rights and freedoms (along with other fundamental constitutional values) ought to be given a status exceeding that which they presently enjoy under the approach outlined by Lord Phillips. Should they, in other words, be enshrined in a hierarchically-superior constitution that would serve as a benchmark for judging the validity of Acts of Parliament? In the light of such considerations, I argued in my evidence to the Committee, which can be found here, that the question it asked itself is misconceived:

A codified, hierarchically-superior constitutional text would then open up possibilities vis-à-vis the judicial role that are absent (or which are at least generally perceived to be absent) from our present arrangements. But which of those possibilities would eventuate would depend not simply upon the existence, but on the content, of such a text. It follows that when the Committee asks, in its terms of reference, about how the judiciary’s role would change under a written constitution, it in fact poses the wrong question. The real issues are how (if at all) the judiciary’s role should be changed—and, to the extent that change is considered desirable, whether the desired changes require the adoption of a codified, hierarchically-superior constitution and, if so, what the terms of that constitution would need to be in order to secure the specific changes deemed necessary. To put the matter another way, we need to decide upon the constitutional role we want our judges to play before determining what, if any, constitutional changes would be necessary in order to ascribe such a role to the judiciary.

However, the reality is that the adoption of a codified constitution – let alone a hierarchically-superior constitution – is unlikely in the absence of some sort of constitutional shock liable to provoke such a move. That is not to say, though, that there is no prospect of this kind of development, given how close the polls now are in relation to the referendum on Scottish independence. Scotland’s departure from the Union would doubtless prompt a fundamental rethink about the relationship between the remaining home nations, the upshot of which could well turn out to be the adoption of a codified – perhaps federal – constitution. The Political and Constitutional Reform Committee’s report is thus clearly nothing more than a highly preliminary scoping exercise: but it is just possible that the question it engages with in today’s Report will prove to be of practical relevance in the foreseeable future.

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