Judging a UK written constitution?

14 May 2014 03:16 PM

The Political and Constitutional Reform Committee publishes report on the constitutional role of the judiciary if there were a codified constitution. The report contributes to the Committee’s wider work on codifying, or not codifying the UK’s constitution. 

• Report: The constitutional role of the judiciary if there were a codified constitution
• Report: the constitutional role of the judiciary if there were a codified constitution (PDF)
• Inquiry: The constitutional role of the judiciary if there were a codified constitution
• Political and Constitutional Reform Committee

Key points in the report include:

• Should the UK move towards a codified constitution, one way of addressing the question of what powers the judiciary should have if they held a piece of legislation to be unconstitutional, would be to introduce the concept of a “declaration of unconstitutionality”.  This could work in the same way as the declaration of incompatibility used under section 4 of the Human Rights Act 1998 for situations in which UK legislation is held to be incompatible with the European Convention on Human Rights. 
• If the UK were to adopt a codified constitution, there would be no need for a separate constitutional court.  The Supreme Court could adjudicate on constitutional matters.
• It would be understandable if the judiciary were unwilling to comment on the contents of a codified constitution, but it would be important to find a way of hearing their views on the implications of the proposals once the general structure of the constitution had been agreed.  If necessary, some of the discussion could take place under Chatham House rules.  Retired members of the judiciary would also be likely to feel freer to offer their opinions than those still serving as judges. 

Chair's comments

The Chair of the Committee, Graham Allen MP, said:

“This report is part of the Committee’s ongoing work on a codified constitution for the UK.  Our report welcomes the fact that the Constitutional Reform Act 2005 enshrined judicial independence in law and the greater separation of powers between the judiciary, the executive and the legislature that the Act brought.”

He added “The Committee expects to publish the results of its wider inquiry into codifying, or not codifying, the UK’s constitution in the summer.”