Written evidence submitted by Dr Patrick O’Brien (CRJ 14)
(The Constitution Unit, UCL)

General observations

This submission is submitted in a personal capacity, but is informed by work I have done with colleagues for the past three years on an AHRC-funded project on The Politics of Judicial Independence in Britain’s Changing Constitution.

There are two important aspects to the role of the judiciary under any constitution. The first is what I will call the ‘substantive power’ aspect – the role of the judge as a decider in recognisable courtroom scenarios. Under this heading we can group questions like: “How much power should judges have to judicially review Government decisions?” and “Is there any circumstance in which a court should have the power to quash statutory law?” The second aspect I will refer to as the ‘administrative’ aspect. Here we need to consider how courts and the judiciary are to be funded, managed and appointed and what role Parliament and the Government should have in these areas. This inquiry is concerned largely with the first aspect – the substantive power of judges – but the two issues are intertwined. The degree to which politicians are prepared to trust the judiciary to exercise a judicial review jurisdiction responsibly, for example, will depend to some extent on whether those politicians trust the process by which those judges are appointed, and the wider judicial culture within which they operate.

One point that has emerged from our project on The Politics of Judicial Independence is that judges now engage with parliamentary committees on a regular basis, and that this form of contact has increased over time as contributions by serving judges to parliamentary debate were phased out. There were 121 appearances by 61 judges before 16 different committees in the years 2003 to 2012; appearances prior to 2003 were very rare. This is a useful illustration of the fact that a distinctive constitutional culture – in this case, the culture in Britain of engagement between Parliament and the judiciary – can persist despite significant constitutional change. Judges can no longer speak in the Lords, so they tend to engage with Select Committees. The UK is an outlier in this respect: in many other jurisdictions direct contact between judges and Parliament is deprecated or discouraged as incompatible with concepts of the separation of powers.

The example is also valuable for its own sake. To build and maintain trust between judges and politicians requires that there be contact between them. This will be important under a codified constitution – and perhaps acutely important during the transition to such a constitution – just as under the current arrangements. Judicial appearances before Select Committees have, unsurprisingly, been most frequent during periods of constitutional change (such as during the 2003-2005 period). This existing culture of engagement should be encouraged and preserved. It would be unfortunate if a codified constitution with a more formal separation of powers led to the loss of this culture of engagement.

Response to the inquiry questions

1. What is the constitutional role of the judiciary and in what principal respects would the role of change if the United Kingdom were to move towards a codified constitution?

At its core, the constitutional role of the judiciary is to adjudicate disputes impartially and independently based on the law. Insofar as they bear a constitutional duty, it is to decide the disputes that are brought before them.

There is nothing inherent in the concept of a codified constitution that necessitates any change in the United Kingdom’s current constitutional arrangements, including to the role of the judiciary. There is no reason why the current arrangements could not be expressed in a written and codified form.

2. What forms of consultation with the judiciary would be necessary to ensure that the legal and judicial implications of codifying the constitution were taken into account?

The judiciary should be consulted (and involved) as part of any process of codification. The parliamentary inquiry model has worked well for this type of work in the last decade, but the way in which the judiciary are involved will depend on the process of codification itself. A process that is led by Parliament will require a different form of involvement to one that is citizen-led.

3. If the UK were to have a codified constitution, what powers should the courts have if they held that a piece of legislation was unconstitutional? a) What would be the implications of these powers on existing constitutional doctrines, including parliamentary sovereignty and judicial review? b) In the context of question 3, what can we learn from the interaction between the UK courts and the European Court of Justice and European Court of Human Rights?

As above, there is no reason why a codified constitution should lead to any significant change to the powers of the courts. That said, many written constitutions do implement some form of enhanced judicial review in relation to constitutional matters. There is logic to this, because it is generally intended (although not strictly speaking required) that a codified constitution will have some superior status. To protect this status, it will be necessary to have some way of resolving conflicts between the constitution and other laws. It will often fall to the judiciary to identify where these conflicts exist, simply because they will inevitably arise in the context of ordinary litigation. If a defendant to, for example, a driving offence asserts that she committed no crime because the Road Traffic Act is unconstitutional and so not valid law, it will be almost impossible for the court to avoid engaging with the constitutional aspect of the problem.

This does not, however, require that the court be given the power to quash the Road Traffic Act. The consequence of a finding of unconstitutionality does not have to be that a statute is nullified (as it is in the case in jurisdictions like the USA and Ireland). The German Constitutional Court takes a broader and more pragmatic approach. Whilst in some cases it will declare an unconstitutional statute to be null and void, it will sometimes make a more limited declaration that the statute is unconstitutional but that the legislature must resolve the problem by a given deadline. On occasion it has allowed an unconstitutional statute to remain in force; in the Saarland case it concluded that an agreement for the Government of Saarland that violated the German constitution should be upheld, on the basis that the alternative was worse.[1]

Another example, closer to home, exists in the ‘declaration of incompatibility’ mechanism contained in the Human Rights Act (HRA). Where a court identifies a problem of unconstitutionality it could, drawing on the model of section 4 of the HRA, issue a declaratory judgment and leave the matter to Parliament to resolve. Again borrowing from the HRA (section 10), such a declaration could trigger a fast-track amendment process for amending the statute in question. A process of this kind could be implemented within a codified constitution without any risk to the sovereignty of Parliament.

4. If there were a codified constitution, should the courts be able to assess the constitutional validity of a Bill before it becomes an Act? What would be the advantages and disadvantages of such a system?

No, on balance it would be best not to have abstract review of this kind. Abstract review of a bill may help to reduce the possibility of any glaring and unintended constitutional errors but Parliament is generally capable of avoiding these on its own.

The primary benefit abstract review appears to offer is that it promises some measure of certainty that bills that have been through a constitutional assessment will not be deemed unconstitutional by the courts at some point in the future. However, abstract review can only examine the compatibility of the text of the bill with the codified constitution. In reality, the manner in which a statute is enforced will be a very important component of the constitutional assessment. Many problems can only become apparent once a policy or statute is implemented. This is as true for problems of unconstitutionality as it is for anything else. It is possible to inoculate bills that have been through an abstract review process against further constitutional scrutiny[2] but this can only be done at the cost of ignoring the point made above: that unconstitutionality will often become apparent only when a statute is implemented.

Parliament does, however, sometimes seek the input of the judiciary as part of the legislative process. There is no reason why this practice could not be extended to include consideration of abstract constitutional issues under a codified constitution; albeit that judges are likely to be unwilling to wish to commit themselves on the specifics. Additionally or alternatively, the Attorney General could be given a formal responsibility to alert Parliament wherever proposed legislation is likely to be unconstitutional.[3]

5. Would a Constitutional Court function best as part of the Supreme Court, or should it be separate? If the latter, how should it be appointed?

A separate constitutional court would not be appropriate. Dedicated constitutional courts are mostly found in civil law countries that tend to have an array of specialised court systems – in such a system a subject-specific constitutional court makes sense. Whilst the UK court system has moved towards greater specialisation in the last 20 years or so, the court system remains unified and the single Supreme Court model is more culturally apt.

6. When considering the constitutional role of the judiciary in the context of a codified constitution, are there any particularly instructive lessons to be drawn from other countries with common law jurisdictions and written constitutions?

Sweden is not a common law country but its constitutional culture is similar to that of the UK (with, for example, a constitutional monarchy, an easily amended constitution that is contained in several documents and significant parliamentary involvement in the protection of human rights). It might be a useful example to draw on.

17 December 2013