The constitutional role of the judiciary if there were a codified constitution in the United...

7/27/2019 The constitutional role of the judiciary if there were a codified constitution in the United Kingdom

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Written evidence submitted to Political and Constitutional Reform CommitteeDr Mark Elliott, Faculty of Law, University of Cambridge

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House of Commons Political and Constitutional Reform Committee

The constitutional role of the judiciaryif there were a codified constitution

Written evidence submitted (in a personal capacity) byDr Mark Elliott, Reader in Public Law, University of Cambridge

Summary

1. In this written evidence, I concentrate on issues pertaining to the first andthird questions posed by the Committee in the inquirys terms of reference,concerning (respectively) the courts present role and their potential role

under a codified constitution, and the powers that courts might exercise werethey to find legislation unconstitutional.

2. In particular, I explain that:a. The distinction between written and unwritten (or codified and

uncodified) constitutions is less significant than the distinction betweenflat and hierarchical constitutions. The shift to a codified constitutionmay, but would not necessarily have to, imply an associated shift from aflat to a hierarchical constitution.

b. The courts already exercise very substantial constitutional functions,such that the shift to a hierarchical/codified constitution would, whilstsignificant, be less dramatic than might be supposed.

c. There is presently a degree of uncertaintywhich inheres in and is anecessary feature of the existing, unwritten constitutionconcerning therelationship between the courts, on the one hand, and the executive andParliament, on the other. The adoption of a codified constitution wouldlikely resolve that uncertainty by clarifying the parameters of eachbranchs powers and the authority, if any, that each would be able toexercise over the others.

d. Ultimately, the extent to which a codified constitution would alter theposition of the judiciary would inevitably turn upon the terms of such aconstitution. The Committee should therefore be asking itself not how acodified constitution would alter the courts position, but what the courtsposition should ideally be, whether a written constitution would benecessary to achieve that ideal, and, if so, how such a constitution couldmost appropriately be framed in order to realize that objective.


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Codified and uncodifiedand flat and hierarchicalconstitutions

3. The distinction between codified/written and uncodified/unwrittenconstitutions is not insignificant; but the difference between them isultimately only one of degree. No constitution is wholly written, just as the

UKs constitution is not entirely unwritten. In reality, the UK alreadypossesses a constitution many aspects of which are codifiedwhether in legaltexts such as the European Communities Act 1972 (ECA) or the HumanRights Act 1998 (HRA), or in authoritative statements of constitutionalpractice such as the Cabinet Manual. This is not, however, to suggest that anyof these sources, whether individually or cumulatively, can properly beregarded as a written constitution for the UK.

4. Although not unimportant, the distinction between codified and uncodifiedconstitutions is eclipsed by a further distinction, between flat andhierarchical constitutions.1 A hierarchical constitution is one that has a

status making it unique within the legal system. Within such a system, allother law exists in the shadow ofand may be valid only to the extent that itis consistent withthe constitution. Within a hierarchical constitution, it may(but is not necessarily) the role of the judiciary to determine whether otherlaw is compatible with the constitutionthat is, whether it is constitutionaland to hold unconstitutional laws invalid. Codified constitutions are usuallyhierarchical, and hierarchical constitutions are usually codifiedbut the twothings do not have to go hand in hand. For example, although the UK is notnormally regarded as having a hierarchical constitution, it has been suggestedby some judges and commentators that there may be unwritten higher-order

laws (consisting, e.g., of fundamental constitutional values and rights) that setthe parameters beyond which ordinary law must not stray. 2 On this(contested) analysis, the UK has an unwritten-but-hierarchical constitution,hierarchically-inviolable constitutional norms consisting in higher-ordercommon-law (rather than written-constitutional) principles.

5. The UKs constitution is, however, generally not considered to be hierarchical.Instead, it is commonly supposed to possess a flat constitution. This doesnot mean that it knows no hierarchy of laws: Acts of Parliament, for instance,are acknowledged to be of a higher legal status than other measures, such asdevolved or secondary legislation. Nevertheless, the UKs constitution may be

considered to be flat in the sense that the constitution itself has no statusthat makes it superior to any other kind of law. In this sense, viewed from theperspective of the (sovereign) UK Parliament, nothing is legally sacrosanct:there is no legal change that cannot be accomplished provided that thepolitical will can be mustered to enact fresh legislation. As a result, the courts

1 See further Elliott and Thomas, Public Law (Oxford 2011), ch 1.2 See, e.g., Sir John Laws, Law and Democracy [1995] PL 72; Lord Woolf, Droit PublicEnglishStyle [1995] PL 57. See also dicta in R (Jackson) v Attorney-General [2005] UKHL 56, [2006] 1 AC 262(speeches of Lady Hale, Lord Hope and Lord Steyn).


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are in no position to uphold constitutional, or any other, values in the faceof contrary primary legislation. This is a straightforward function of thedoctrine of parliamentary sovereignty, which is generally (but notuniversally) still taken to apply in the UK.

6.

It is likely that any transition from an uncodified to a codified constitution inthe UK would be accompanied by a shift from a flat to a hierarchicalconstitution: one in which the authority of all branches of the state, includingParliament, would be determined by the terms of a hierarchically-superiorconstitution. The existence of constitutional constraints upon the powers ofeach branch of government would be largely meaningless if there were noeffective way of enforcing them, and it is often the case that that function isallocated to the judiciary. The adoption of a codified constitution wouldtherefore at least raise the prospect of the judiciary assuming greater powersin relation to Parliament (or, more precisely, legislation enacted byParliament) than is presently the case. However, as I explain below, it doesnot necessarily follow that a codified, hierarchical constitution must authorize

judges to be the ultimate arbiters of constitutionality.

The role of the judiciary under current constitutional arrangements

7. The absence of a codified constitution notwithstanding, the judiciary in theUK already performs several significant functions that can fairly be describedas constitutional. The following examples are intended to be illustrative ratherthan exhaustive (not least because what amounts to a constitutionaljudicialfunction is itself contestable).

8.

First, although the UKs constitution is not hierarchical in the sense thatnothing in domestic law ranks higherthan an Act of Parliament, the reverse-side of this coin is that everything else ranks lower. And this means that, theabsence of a codified constitution notwithstanding, courts can be called uponto perform what might be regarded as constitutional functions by ensuringthat other institutions respect the ground-rules laid down for them byParliament. For instance, the devolution legislation enacted by theWestminster Parliament places clear limits on the authority of the devolvedlegislatures and administrations. Although they have not so far been requiredto do so frequently, the judiciary can, and will, step in when disputes ariseconcerning the extent of devolved power. In this way, the UKs judiciaryexercises a constitutional function closely analogous to that performed bycourts in systems (including federal ones) in which power is shared out by awritten constitution between central and regional governments.

9. Second, the courts are the final arbiters of what constitutes a valid law. Thisfunction applies most obviously to measures other than Acts of Parliamentthat are enacted by bodies with limited authorityincluding, as noted in theprevious paragraph, devolved legislation. In contrast, it may appear that thefunction has no application in relation to Acts of the UK Parliament, giventhataccording to the principle of parliamentary sovereigntythere are no


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external values, such as hierarchically-superior constitutional rights, thatconstrain its law-making capacity. However, questions can arise aboutwhether a given provision in an Act of Parliament is valid in the light of aprovision contained in some other Act of Parliament. At its most mundane, thissimply requires the court to determine whether the provisions of an earlier

and a later Act are incompatible, the normal principle being that in suchcircumstances the earlier legislation is repealed by the later statute to theextent of the inconsistency.

10. However, questions of this nature may also arise in forms that possess amore-obviously constitutional character. A significant example is supplied bytheJackson case, in which the Appellate Committee of the House of Lords wascalled upon to resolve a dispute about whether the Hunting Act 2004 was avalid piece of legislation, the (ultimately unsuccessful) argument being that itsenactment had depended upon amendments to the Parliament Act 1911which were themselves said to have been unlawfully made. Here, then, theAppellate Committee of the House of Lords was called upon to perform anexplicitly-constitutional task by determining the extent the authorityconferred upon the House of Commons by the Parliament Acts and, in turn,whether something enacted thereunder was to be regarded as a genuine Actof Parliament. It has also been suggestedby Laws LJ in the Thoburn casethat there are such things as constitutional statutes. This view challengesorthodoxy in that it envisages a modest hierarchy of UK legislation,constitutional legislation being vulnerable only to express, not implied,repeal, and therefore (slightly) more difficult to dislodge. Acceptance of thisview would augment the constitutional dimension of the judiciarys role.

11. Third, one of the most tangible aspects of that role consists of the courtspowers of judicial review of administrative action. As is well known,decisions, policies and secondary legislation adopted by executive bodies issubject to scrutiny by the courts. The courts function is to determine whetherexecutive action is lawful, by reference both to the terms of the statute thatpurportedly authorizes the action and to a wider set of principles of goodadministrationencompassing such requirements as reasonableness andfairnessthat the courts have developed incrementally. In discharging thisfunction, the judiciary gives practical effect to key constitutional principles,including (by ensuring that the executive acts only within the law) the rule of

law and (by preventing the executive from asserting power not granted to itby Parliament) the separation of powers.

12. Fourth, the absence of a written constitution in the UK means, paradoxically,that the courts constitutional role is in some respects greater than it wouldotherwise be. Without an authoritative text upon which to rely, judges arecalled upon not only to decide whether the requirements of the (unwritten)constitution have been complied with, but also to determine, in the first place,


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what those requirements are.3 One manifestation of this is the development,by the courts, of the principles of good administration mentioned above, byreference to which the lawfulness of executive conduct falls to be measured. Afurther illustration is supplied by the notion of common-law constitutionalrights. This ideawhich predates and survives4 the activation of the HRA

substitutes for, but does not entirely replicate, a textual bill of rights. As wellas being judicial creations (rather than the product of a constitution-draftingprocess), common-law rights are distinctive in that they exist only asinterpretative constructs. Whereas rights contained in a bill of rightscommonly (but do not necessarily)5 operate as trumps, prevailing over andinvalidating legislation to the extent of any incompatibility, common-lawrights can only shape the courts interpretation of Acts of Parliament.However, while this means that common-law rights must ultimately yield inthe face of a clearly-inconsistent Act, they nevertheless afford the courtsconsiderable latitude to shape the practical meaning and effect of legislation.

This, in turn, often equips the courts, via judicial review, to enforceadministrative respect for basic rights on the ground that the executivespowersonce the relevant statute is properly interpreteddo not extend tooverriding the common-law constitutional rights of the individual.

13. Fifth, the doctrine of common-law constitutional rights is, at least for the timebeing, accompanied by the courts role under the HRA. That role extends tointerpreting legislation, where possible, in line with certain of the rightsenshrined in the European Convention on Human Rights and using thoserights as benchmarks by which to assess the legality of public authoritiesconduct. In these senses, the HRA mirrors the idea of common-law rights, but

goes further in at least two respects. The array of rights protected by the Act issignificantly wider than that recognized at common law. And the Act justifies(indeed requires) a very strong interpretative approach that has led courts todepart substantially from the plain meaning of legislation in order to render itConvention-compliant.

14. The Act also differs from the common-law approach in a more radical way,by authorizing certain courts to issue a declaration of incompatibility whenit proves impossible to interpret an Act of Parliament in line with Conventionrights. Although lacking concrete legal effect, such declarations have provento be remarkably potentnot least because they likely foreshadow a binding

judgment in the European Court of Human Rightsand have almostinvariably resulted in remedial action by the executive or Parliament toremove incompatible provisions from the statute book. In this sense, while the

3 This is not to suggest that a written text would answer every question, reducing the judicial functionto a wholly mechanical one. However, there is a qualitative difference between the interpretativelatitude enjoyed by courts enforcing a written constitution and the position in which UK judges findthemselves in this sphere.4 As the Supreme Court recently made abundantly clear in Osborn v Parole Board [2013] UKSC 61.5 See, e.g., the New Zealand Bill of Rights Act 1990, under which rights do not operate in this sense astrumps.


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HRA denies UK courts the nuclear option of legislative invalidation, it equipsthem, in practice, to procure the repeal or amendment of incompatiblelegislation. This, in turn, supplies a particularly clear example of theconstitutionalization of the judicial function.

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Sixth, the judiciary possesses a clearly constitutional functionalbeit one it israrely called upon to performwhen adjudicating upon disparities betweendirectly-effective European Union law and UK law. In the Factortame case, forexample, part of an Act of Parliament was disapplied by the AppellateCommittee of the House of Lords in order to give effect to conflictingprovisions of EU law.6 In doing this, the House of Lords exercised powersthat are closely analogous to those wielded by courts which strike downlegislation under written-constitutional schemes.

The relationship between the courts and the other branches of government

16.

The foregoing illustrations of the courts present role demonstrates that theyperform functions that can fairly be described as constitutional in nature.They also show that although the UKs arrangements are not hierarchical inthe sense of possessing a layer of constitutional law superior to Acts ofParliament, the constitution is in fact increasingly multilayeredaphenomenon that has significant consequences for the judicial function. Theconstitution is multilayered in both institutional terms (requiring courts todemarcate the boundaries separating local, devolved, national andsupranational tiers of authority) and normative terms (meaning that the

judicial role is increasingly concerned with values, including rights, that arerecognized to possess a fundamentality which warrants special protection).

17. The resulting constitutionalization of the courts role raises something of aparadox. The judiciary in the UK now finds itself in a position which, infunctional terms, closely resembles that which is occupied by courts insystems that have codified constitutions. At the same time, however, thefoundation upon which this constitutional role is built is fragileor at leastobscure. It is, for example, unclear whether such things as constitutionalstatutes really existand, if they do, how they should be identified andwhat consequences flow from so characterizing a piece of legislation. There isalso uncertainty about exactly what counts as a common-law right: a questionthat is made less important by the HRA, but which would assume far greaterprominence were that Act to be repealed or replaced by less robustlegislation.

18. These uncertainties play out on a much larger canvas as well. Two exampleswill suffice. First, the government has published two sets of proposals in thelast year proposing changes to (including restrictions upon) judicial review,the implicit premise being that the relationship between the executive and thecourts is a matter that ultimately falls to be conducted on terms prescribed by

6R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 AC 603.


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the former.7 Yet the possibility of the courts wings being clipped in this wayby the executive (with, where necessary, the assistance of parliamentarylegislation) would be anathema in most written-constitutional systems. Insuch systems, the position of the courts vis--vis the other branches isconstitutionally-stipulated, making the attenuation of judicial authority as

hard as constitutional amendment itself. In this sense, it is to be expected thatthe courts position would be more secure if the UK were to adopt a writtenconstitutionalthough, as I point out below, in the final section of this paper,that would depend upon the precise terms and status of such a constitution.

19. Second, the ultimate constitutional uncertainty in the UK concerns what thecourts could and should do if Parliament were to enact unconstitutionallegislationwhich begs the further question whether legislation duly enactedby the UK Parliament could ever be unconstitutional. Conventional wisdom,reflected in the doctrine of parliamentary sovereignty, suggests that theanswer to the second question is nomaking the first question moot. Butsuch orthodoxy is not universally accepted, even by judges. In the Jacksoncase, for instance, three Law Lords expressed doubts about whether a courtshould uphold legislation abolishing judicial review.8 The implicit suggestionis that the courts, in extremis, may claim constitutional authority to upholdfundamental constitutional values in the face of conflicting primarylegislationjust as judges enforcing a written constitution may do.

The terms of a codified constitution, the nature of the constitution and thejudicial role

20. It may seem surprising that there is uncertainty about matters as fundamentalas these. In fact, the UKs constitutional system is premised upon theassumption that open conflict between Parliament and the courtsand hencecrunch questions about what would happen in the event of such conflictwill not occur. That assumption, in turn, is based upon the expectation thateach side will respect the unwritten rules of the game: that courts will notsecond-guess the legality of legislation made by Parliament, but thatParliament will not in the first place enact legislation whose basicconstitutionality can reasonably be doubted. From one perspective, then, theadoption of a codified constitution would offer the prospect of a clearerrelationship between the courts and the other branches of governmentand

greater explicit constitutional security for the judicial branch. This, however,raises deeper questions concerning the type of relationship between thecourts and the other branchesand, ultimately, the type of constitutionthatis desired.

21. The adoption of a written constitutionassuming that it would behierarchically superior in the sense sketched earlier in this paperwould

7 Ministry of Justice,Judicial Review: Proposals for Reform (London 2012); Ministry of Justice,JudicialReview: Proposals for Further Reform (London 2013).8 See above, n 2.


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create the possibility of a judiciary with powers that would be more extensiveand legally more secure. However, this position would only actually obtain ifthe terms of the constitution so prescribed. It would, for instance, be possibleto adopt a US-style constitution that invested the courts with the power tostrike down or refuse to apply unconstitutional legislation. This would, in

effect, enable courts to perform in relation to Acts of Parliament a role thatthey presently perform, through judicial review, in relation to executiveaction and devolved and secondary legislation.

22. Within this paradigm, the terms of the constitution (including any bill ofrights contained within it or otherwise invested with equivalent constitutionalstatus) would form the benchmarks against which the validity of Acts ofParliament (as well as executive action and devolved and secondarylegislation) would be determined. Constitutional rightsbecause they wouldno longer simply be principles of statutory interpretationwould cease toyield in the face of sufficiently clearly-framed primary legislation. Meanwhile,

judicial review itself would acquire a constitutionally-entrenched status,making it legally impossible (in the absence of constitutional amendment) forthe other branches to seek to interfere with or diminish the courts powers.The concept of parliamentary sovereignty would be wholly alien to such asystem. In this way, the implicit practical constraints upon parliamentarysovereignty that already exist thanks to the binding effect upon the UK of itsinternational obligationsincluding under EU law and the ECHRwouldmove to the domestic centre-stage, as national courts would acquire theauthority to invalidate legislation that was found constitutionally wanting.

23. Whether this amounts to a utopian or a dystopian vision of a future UKconstitution is a matter of opinion. What is less contestable is that to go downthis road would represent a break with tradition. Recent constitutionalizationof the judiciarys role notwithstanding, it is clear that a written constitutionwould create the possibility of a judiciary equipped with far greaterandmore legally securepowers. This, in turn, would facilitate the adoption of amore-legal approach to constitutionalism: one that relied more fully upon thecourts to uphold legal-constitutional values and rights, and which(necessarily) reposed less trust in the sort of voluntary restraint and mutualrespect upon which the current system relies. An inevitable consequencewould be a transfer of authority from the elected branches to the courts,

which would, in some areas, become the principle site of debate concerningmatters of public policy.

24. Whether a codified constitution produced such changes would, however, turnnot upon the fact that it was codified, but upon its exact terms. A writtenconstitution does not, for instance, have to hand the last word to the courtsover every (or any) constitutional matter. An obvious alternativeand onethat would strike a different balance between judicial and political powerwould be a dialogic model, according to which the courts would be accordedan enhanced voice in relation to constitutional matters, without giving themthe final say. Such an approach is already evident to some extent in the HRA,


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which allows the courts to pronounce upon the compatibility of primarylegislation with Convention rights, whilst leaving it to the political branchesto decide how (if at all) to respond in the event an incompatibility being

judicially declared. A stronger version of this model might be contemplatedunder a written constitutionbased, perhaps, on the Canadian model, which

allows courts to invalidate legislation but provides also for subsequentlegislative override of such judicial decisions. 9 Nor would a codifiedconstitution necessarily have to accord to the courts the same amount andtype of power in relation to each and every matter. It might, for instance, befelt that courts ought to be given the final word about the demarcation ofauthority between different tiers of government, but that the politicalbranches should retain a stronger voice in relation to contestable issues ofrights through the adoption, in that sphere, of a dialogic technique.

25. It is far beyond the scope of this paper to explore these possible approaches indetail. Rather, they are mentioned simply in order to illustrate the point thatdeciding to adopt a codified or written constitution is not in itselfdeterminative of the role that the judiciary would play thereunder. Certainly,the adoption of such a constitution would make it possible to carve out for thecourts a different and more extensive role than that which they are currentlyacknowledged to play. But it does not mandate that judges must be accordedsuch a role.

26. A codified, hierarchically-superior constitutional text would then open uppossibilities vis--vis the judicial role that are absent (or which are at leastgenerally perceived to be absent) from our present arrangements. But whichof those possibilities would eventuate would depend not simply upon theexistence, but on the content, of such a text. It follows that when the Committeeasks, in its terms of reference, about how the judiciarys role would changeunder a written constitution, it in fact poses the wrong question. The realissues are how (if at all) the judiciarys role should be changedand, to theextent that change is considered desirable, whether the desired changesrequire the adoption of a codified, hierarchically-superior constitution and, ifso, what the terms of that constitution would need to be in order to secure thespecific changes deemed necessary. To put the matter another way, we needto decide upon the constitutional role we want our judges to play beforedetermining what, if any, constitutional changes would be necessary in order

to ascribe such a role to the judiciary.

9 Canadian Charter of Rights and Freedoms, s 33.

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