Written evidence from Mark Ryan (CRJ 01)
1. My name is Mark Ryan and I am a Senior Lecturer in Constitutional and Administrative Law at Coventry University. My submission, however, is made in my personal capacity and indicates my personal observations in respect of the role of the courts in the context of a codified constitution. It in no way reflects the views of my employer (Coventry University).
2. Question 1: The constitutional role of the judiciary in the United Kingdom is to determine the law laid down in statutes and that developed in the common law. In short, the courts settle legal disputes by interpreting and applying the law to a particular case before it. In terms of our uncodified constitution, the judiciary have historically assumed a responsibility for protecting the individual from the state. In particular, this has been achieved by the courts interpreting legislation in the light of certain constitutional presumptions (e.g. access to the court) and developing the common law within the context of constitutional principles (e.g. by providing remedies). A central role of the judiciary has been to uphold the rule of law and thereby protect the individual by ensuring that state/executive bodies act strictly within the legal powers conferred. In fact, judicial review - as implemented by the judiciary - can be viewed as the rule of law in operation.
3. If the United Kingdom were to adopt a codified constitution (albeit this is highly unlikely given that constitutions are typically fashioned in the context of a crisis/watershed), it would necessarily alter the courts’ relationship with both the executive and the legislature. In terms of the executive, it seems likely that the current procedural nature of judicial review, which focuses on the decision- making process, would shift towards one involving a closer examination of the decision itself. In other words, it seems clear that the judges - armed with the specific authority invested by a codified constitution - would inevitably adopt a more robust approach in their dealings with the executive.
4. The most important change, however, would undoubtedly occur in respect of the courts’ relationship with the legislature, as a codified constitution would render the common law principle of parliamentary sovereignty redundant. After all, the laws contained within the new constitutional document would be considered to be of a fundamental and higher legal order. The role of the courts in the context of a codified constitution, therefore, would be to uphold the new codified documentary constitution. In other words, sovereignty would have shifted from Parliament (albeit that according to Dicey political sovereignty ultimately rests with the people) to the new codified constitution.
5. A central way in which a new codified constitution would benefit the individual is that the constitutional document would undoubtedly contain a Bill or Charter of Rights. This would constitutionally ring fence the fundamental rights of the individual, which the courts would be required to protect from infringement from both the executive and the legislature. It must be pointed out, however, that the more constitutional power enjoyed by the judiciary the more interest there would be in, and scrutiny of, senior judicial appointments.
6. Question 2: The principle of consultation is very important (it is after all a general principle in public law). The results of such a consultation exercise would rather usefully indicate how the judges would perceive their role in the context of a codified constitutional landscape. Such consultation should also extend beyond serving members of the judiciary and embrace those retired senior judges currently sitting in the House of Lords.
7. Question 3: It is submitted that under a codified constitution the constitutional role of the judiciary should be enhanced by conferring the power to strike down (or part of) an Act of Parliament which is deemed “legally” unconstitutional. Accordingly, if an Act were to be declared unconstitutional (i.e. as being inconsistent with the provisions of the codified constitution) it should be declared invalid, or at the very least, suspended. The latter scenario would then allow Parliament to subsequently alter the legislation (analogous to the position following the decision of the House of Lords in the ex parte Factortame litigation: R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603). It is recognised that empowering the courts to strike down Acts of Parliament would represent a fundamental shift in our constitutional arrangements and would be considered highly controversial in some quarters. In contrast, the striking down of delegated legislation deemed unconstitutional would clearly be less contentious. After all, the courts can already invalidate secondary legislation in judicial review proceedings if it is, for example, ultra vires its parent Act.
8. Question 3(a): The impact of a codified constitution on parliamentary sovereignty is that this principle would simply cease to exist as it is, after all, a common law construct. In short, as noted earlier, the notion of sovereignty would shift from Parliament to the new codified constitutional document. This constitutional transfer would undoubtedly have to be authorised by the people in a national referendum. In respect of primary legislation, as elsewhere, judicial review would be known as “constitutional review”. In relation to the executive, it seems inevitable that acting under the authority of power conferred by a codified constitution, judicial review of Government action would become much more robust and move from a technically procedural remedy to a much more substantive one.
9. Question 3(b): The history of the Court of Justice of the European Union (ECJ) illustrates a court gaining in confidence and developing its role. Indeed, the two major principles of European law developed by the Court, viz., the primacy of European law and the doctrine of direct effect were not expressly set out in the original Treaty of Rome and demonstrate the dynamism of the European Court in developing its constitutional role. In fact, the impact on the United Kingdom was seen in the ex parte Factortame litigation in which the European Court effectively empowered the United Kingdom courts to disregard domestic constitutional arrangements in order to protect putative European law rights. The experience of the European Court perhaps suggests that the United Kingdom courts may also gradually develop their constitutional role over time once a new codified constitution has bedded in.
10. Question 4: There is a certain legal logic to enabling the courts to assess the validity of a Bill prior to it being made an Act (with a clear precedent being found in the Scotland Act 1998). Although this procedure would help to ensure that a Bill was within the parameters of the codified constitution, it could be argued that it would represent a breach of the separation of powers as an interference with the legislative process and function. In any event, if such a procedure were to be adopted, it would have to be determined who had the responsibility (or power) to refer a Bill, and at what stage in the legislative process.
11. Question 5: Ideally the new Constitutional Court should be a separate entity from the existing Supreme Court. This would entail two consequences: firstly, it would require the recruitment of more senior judges. Secondly, the name of the Supreme Court (assuming that it is to exist under a new codified constitution) would have to be renamed. It is submitted that the court be renamed: The Final Court of Appeal and as such, it would process “non-constitutional” law issues, whilst the new Constitutional Court would consider purely “constitutional” issues. It is of course recognised that there is no clear and sharp dividing line between constitutional and non-constitutional issues, however, in general terms a division can be made and in any case, this should not be considered an insuperable problem.
12. Question 6: The American Supreme Court provides a graphic example of the power of the judiciary in a codified constitution to develop and enhance its constitutional role, as demonstrated in the famous Marbury v Madison case ((1803) 5 US I Cranch 137). Under a codified constitution the courts will necessarily be the protectors of the constitution and the final arbiter as to the meaning of its provisions. As such, this would lead to greater interest in, and scrutiny of, senior judicial appointments. This may necessitate that parliamentary affirmations of senior judicial appointments have to take place. In terms of appointments, a specifically ad hoc Commission (analogous to the Supreme Court Selection Commission) could be created to put forward a suitable candidate in the event of a vacancy.
12 October 2013