House of Commons Political and Constitutional Reform Committee

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

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

Summary
1. In this written evidence, I concentrate on issues pertaining to the first and third 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 were they to find legislation unconstitutional. In particular, I explain that: a. The distinction between written and unwritten (or codified and uncodified) constitutions is less significant than the distinction between flat and hierarchical constitutions. The shift to a codified constitution may, but would not necessarily have to, imply an associated shift from a flat to a hierarchical constitution. b. The courts already exercise very substantial constitutional functions, such that the shift to a hierarchical/codified constitution would, whilst significant, be less dramatic than might be supposed. c. There is presently a degree of uncertaintywhich inheres in and is a necessary feature of the existing, unwritten constitutionconcerning the relationship between the courts, on the one hand, and the executive and Parliament, on the other. The adoption of a codified constitution would likely resolve that uncertainty by clarifying the parameters of each branchs powers and the authority, if any, that each would be able to exercise over the others. d. Ultimately, the extent to which a codified constitution would alter the position of the judiciary would inevitably turn upon the terms of such a constitution. The Committee should therefore be asking itself not how a codified constitution would alter the courts position, but what the courts position should ideally be, whether a written constitution would be necessary to achieve that ideal, and, if so, how such a constitution could most appropriately be framed in order to realize that objective.

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

Codified and uncodifiedand flat and hierarchicalconstitutions

3. The distinction between codified/written and uncodified/unwritten constitutions is not insignificant; but the difference between them is ultimately only one of degree. No constitution is wholly written, just as the UKs constitution is not entirely unwritten. In reality, the UK already possesses a constitution many aspects of which are codifiedwhether in legal texts such as the European Communities Act 1972 (ECA) or the Human Rights Act 1998 (HRA), or in authoritative statements of constitutional practice such as the Cabinet Manual. This is not, however, to suggest that any of these sources, whether individually or cumulatively, can properly be regarded as a written constitution for the UK. Although not unimportant, the distinction between codified and uncodified constitutions is eclipsed by a further distinction, between flat and hierarchical constitutions. 1 A hierarchical constitution is one that has a status making it unique within the legal system. Within such a system, all other law exists in the shadow ofand may be valid only to the extent that it is consistent withthe constitution. Within a hierarchical constitution, it may (but is not necessarily) the role of the judiciary to determine whether other law is compatible with the constitutionthat is, whether it is constitutional and to hold unconstitutional laws invalid. Codified constitutions are usually hierarchical, and hierarchical constitutions are usually codifiedbut the two things do not have to go hand in hand. For example, although the UK is not normally regarded as having a hierarchical constitution, it has been suggested by some judges and commentators that there may be unwritten higher-order laws (consisting, e.g., of fundamental constitutional values and rights) that set the 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-order common-law (rather than written-constitutional) principles. The UKs constitution is, however, generally not considered to be hierarchical. Instead, it is commonly supposed to possess a flat constitution. This does not 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 as devolved or secondary legislation. Nevertheless, the UKs constitution may be considered to be flat in the sense that the constitution itself has no status that makes it superior to any other kind of law. In this sense, viewed from the perspective of the (sovereign) UK Parliament, nothing is legally sacrosanct: there is no legal change that cannot be accomplished provided that the political will can be mustered to enact fresh legislation. As a result, the courts

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See further Elliott and Thomas, Public Law (Oxford 2011), ch 1. See, e.g., Sir John Laws, Law and Democracy [1995] PL 72; Lord Woolf, Droit PublicEnglish Style [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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Written evidence submitted to Political and Constitutional Reform Committee Dr Mark Elliott, Faculty of Law, University of Cambridge

are in no position to uphold constitutional, or any other, values in the face of contrary primary legislation. This is a straightforward function of the doctrine of parliamentary sovereignty, which is generally (but not universally) still taken to apply in the UK. 6. It is likely that any transition from an uncodified to a codified constitution in the UK would be accompanied by a shift from a flat to a hierarchical constitution: one in which the authority of all branches of the state, including Parliament, would be determined by the terms of a hierarchically-superior constitution. The existence of constitutional constraints upon the powers of each branch of government would be largely meaningless if there were no effective way of enforcing them, and it is often the case that that function is allocated to the judiciary. The adoption of a codified constitution would therefore at least raise the prospect of the judiciary assuming greater powers in relation to Parliament (or, more precisely, legislation enacted by Parliament) than is presently the case. However, as I explain below, it does not 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 the UK already performs several significant functions that can fairly be described as constitutional. The following examples are intended to be illustrative rather than exhaustive (not least because what amounts to a constitutional judicial function is itself contestable). First, although the UKs constitution is not hierarchical in the sense that nothing in domestic law ranks higher than an Act of Parliament, the reverseside of this coin is that everything else ranks lower. And this means that, the absence of a codified constitution notwithstanding, courts can be called upon to perform what might be regarded as constitutional functions by ensuring that other institutions respect the ground-rules laid down for them by Parliament. For instance, the devolution legislation enacted by the Westminster Parliament places clear limits on the authority of the devolved legislatures and administrations. Although they have not so far been required to do so frequently, the judiciary can, and will, step in when disputes arise concerning the extent of devolved power. In this way, the UKs judiciary exercises a constitutional function closely analogous to that performed by courts in systems (including federal ones) in which power is shared out by a written constitution between central and regional governments. Second, the courts are the final arbiters of what constitutes a valid law. This function applies most obviously to measures other than Acts of Parliament that are enacted by bodies with limited authorityincluding, as noted in the previous paragraph, devolved legislation. In contrast, it may appear that the function has no application in relation to Acts of the UK Parliament, given thataccording to the principle of parliamentary sovereigntythere are no

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

external values, such as hierarchically-superior constitutional rights, that constrain its law-making capacity. However, questions can arise about whether a given provision in an Act of Parliament is valid in the light of a provision contained in some other Act of Parliament. At its most mundane, this simply requires the court to determine whether the provisions of an earlier and a later Act are incompatible, the normal principle being that in such circumstances the earlier legislation is repealed by the later statute to the extent of the inconsistency. 10. However, questions of this nature may also arise in forms that possess a more-obviously constitutional character. A significant example is supplied by the Jackson case, in which the Appellate Committee of the House of Lords was called upon to resolve a dispute about whether the Hunting Act 2004 was a valid piece of legislation, the (ultimately unsuccessful) argument being that its enactment had depended upon amendments to the Parliament Act 1911 which were themselves said to have been unlawfully made. Here, then, the Appellate Committee of the House of Lords was called upon to perform an explicitly-constitutional task by determining the extent the authority conferred upon the House of Commons by the Parliament Acts and, in turn, whether something enacted thereunder was to be regarded as a genuine Act of Parliament. It has also been suggestedby Laws LJ in the Thoburn case that there are such things as constitutional statutes. This view challenges orthodoxy 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 this view would augment the constitutional dimension of the judiciarys role. Third, one of the most tangible aspects of that role consists of the courts powers of judicial review of administrative action. As is well known, decisions, policies and secondary legislation adopted by executive bodies is subject to scrutiny by the courts. The courts function is to determine whether executive action is lawful, by reference both to the terms of the statute that purportedly authorizes the action and to a wider set of principles of good administrationencompassing such requirements as reasonableness and fairnessthat the courts have developed incrementally. In discharging this function, 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 it by Parliament) the separation of powers. Fourth, the absence of a written constitution in the UK means, paradoxically, that the courts constitutional role is in some respects greater than it would otherwise be. Without an authoritative text upon which to rely, judges are called 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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Written evidence submitted to Political and Constitutional Reform Committee Dr Mark Elliott, Faculty of Law, University of Cambridge

what those requirements are.3 One manifestation of this is the development, by the courts, of the principles of good administration mentioned above, by reference to which the lawfulness of executive conduct falls to be measured. A further illustration is supplied by the notion of common-law constitutional rights. This ideawhich predates and survives4 the activation of the HRA substitutes for, but does not entirely replicate, a textual bill of rights. As well as being judicial creations (rather than the product of a constitution-drafting process), common-law rights are distinctive in that they exist only as interpretative constructs. Whereas rights contained in a bill of rights commonly (but do not necessarily)5 operate as trumps, prevailing over and invalidating legislation to the extent of any incompatibility, common-law rights can only shape the courts interpretation of Acts of Parliament. However, while this means that common-law rights must ultimately yield in the face of a clearly-inconsistent Act, they nevertheless afford the courts considerable latitude to shape the practical meaning and effect of legislation. This, in turn, often equips the courts, via judicial review, to enforce administrative respect for basic rights on the ground that the executives powersonce the relevant statute is properly interpreteddo not extend to overriding the common-law constitutional rights of the individual. 13. Fifth, the doctrine of common-law constitutional rights is, at least for the time being, accompanied by the courts role under the HRA. That role extends to interpreting legislation, where possible, in line with certain of the rights enshrined in the European Convention on Human Rights and using those rights as benchmarks by which to assess the legality of public authorities conduct. 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 is significantly wider than that recognized at common law. And the Act justifies (indeed requires) a very strong interpretative approach that has led courts to depart substantially from the plain meaning of legislation in order to render it Convention-compliant. The Act also differs from the common-law approach in a more radical way, by authorizing certain courts to issue a declaration of incompatibility when it proves impossible to interpret an Act of Parliament in line with Convention rights. Although lacking concrete legal effect, such declarations have proven to be remarkably potentnot least because they likely foreshadow a binding judgment in the European Court of Human Rightsand have almost invariably resulted in remedial action by the executive or Parliament to remove incompatible provisions from the statute book. In this sense, while the

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This is not to suggest that a written text would answer every question, reducing the judicial function to a wholly mechanical one. However, there is a qualitative difference between the interpretative latitude enjoyed by courts enforcing a written constitution and the position in which UK judges find themselves 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 as trumps.
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Written evidence submitted to Political and Constitutional Reform Committee Dr Mark Elliott, Faculty of Law, University of Cambridge

HRA denies UK courts the nuclear option of legislative invalidation, it equips them, in practice, to procure the repeal or amendment of incompatible legislation. This, in turn, supplies a particularly clear example of the constitutionalization of the judicial function. 15. Sixth, the judiciary possesses a clearly constitutional functionalbeit one it is rarely called upon to performwhen adjudicating upon disparities between directly-effective European Union law and UK law. In the Factortame case, for example, part of an Act of Parliament was disapplied by the Appellate Committee of the House of Lords in order to give effect to conflicting provisions of EU law.6 In doing this, the House of Lords exercised powers that are closely analogous to those wielded by courts which strike down legislation 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 they perform functions that can fairly be described as constitutional in nature. They also show that although the UKs arrangements are not hierarchical in the sense of possessing a layer of constitutional law superior to Acts of Parliament, the constitution is in fact increasingly multilayereda phenomenon that has significant consequences for the judicial function. The constitution is multilayered in both institutional terms (requiring courts to demarcate the boundaries separating local, devolved, national and supranational tiers of authority) and normative terms (meaning that the judicial role is increasingly concerned with values, including rights, that are recognized to possess a fundamentality which warrants special protection). The resulting constitutionalization of the courts role raises something of a paradox. The judiciary in the UK now finds itself in a position which, in functional terms, closely resembles that which is occupied by courts in systems that have codified constitutions. At the same time, however, the foundation upon which this constitutional role is built is fragileor at least obscure. It is, for example, unclear whether such things as constitutional statutes really existand, if they do, how they should be identified and what consequences flow from so characterizing a piece of legislation. There is also uncertainty about exactly what counts as a common-law right: a question that is made less important by the HRA, but which would assume far greater prominence were that Act to be repealed or replaced by less robust legislation. These uncertainties play out on a much larger canvas as well. Two examples will suffice. First, the government has published two sets of proposals in the last year proposing changes to (including restrictions upon) judicial review, the implicit premise being that the relationship between the executive and the courts is a matter that ultimately falls to be conducted on terms prescribed by

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

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

the former.7 Yet the possibility of the courts wings being clipped in this way by the executive (with, where necessary, the assistance of parliamentary legislation) would be anathema in most written-constitutional systems. In such systems, the position of the courts vis--vis the other branches is constitutionally-stipulated, making the attenuation of judicial authority as hard as constitutional amendment itself. In this sense, it is to be expected that the courts position would be more secure if the UK were to adopt a written constitutionalthough, 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 the courts could and should do if Parliament were to enact unconstitutional legislationwhich begs the further question whether legislation duly enacted by the UK Parliament could ever be unconstitutional. Conventional wisdom, reflected in the doctrine of parliamentary sovereignty, suggests that the answer to the second question is nomaking the first question moot. But such orthodoxy is not universally accepted, even by judges. In the Jackson case, for instance, three Law Lords expressed doubts about whether a court should uphold legislation abolishing judicial review.8 The implicit suggestion is that the courts, in extremis, may claim constitutional authority to uphold fundamental constitutional values in the face of conflicting primary legislationjust as judges enforcing a written constitution may do.

The terms of a codified constitution, the nature of the constitution and the judicial role
20. It may seem surprising that there is uncertainty about matters as fundamental as these. In fact, the UKs constitutional system is premised upon the assumption that open conflict between Parliament and the courtsand hence crunch questions about what would happen in the event of such conflict will not occur. That assumption, in turn, is based upon the expectation that each side will respect the unwritten rules of the game: that courts will not second-guess the legality of legislation made by Parliament, but that Parliament will not in the first place enact legislation whose basic constitutionality can reasonably be doubted. From one perspective, then, the adoption of a codified constitution would offer the prospect of a clearer relationship 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 the courts and the other branchesand, ultimately, the type of constitutionthat is desired. The adoption of a written constitutionassuming that it would be hierarchically superior in the sense sketched earlier in this paperwould

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Ministry of Justice, Judicial Review: Proposals for Reform (London 2012); Ministry of Justice, Judicial Review: Proposals for Further Reform (London 2013). 8 See above, n 2.
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Written evidence submitted to Political and Constitutional Reform Committee Dr Mark Elliott, Faculty of Law, University of Cambridge

create the possibility of a judiciary with powers that would be more extensive and legally more secure. However, this position would only actually obtain if the terms of the constitution so prescribed. It would, for instance, be possible to adopt a US-style constitution that invested the courts with the power to strike down or refuse to apply unconstitutional legislation. This would, in effect, enable courts to perform in relation to Acts of Parliament a role that they presently perform, through judicial review, in relation to executive action and devolved and secondary legislation. 22. Within this paradigm, the terms of the constitution (including any bill of rights contained within it or otherwise invested with equivalent constitutional status) would form the benchmarks against which the validity of Acts of Parliament (as well as executive action and devolved and secondary legislation) would be determined. Constitutional rightsbecause they would no longer simply be principles of statutory interpretationwould cease to yield 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) for the other branches to seek to interfere with or diminish the courts powers. The concept of parliamentary sovereignty would be wholly alien to such a system. In this way, the implicit practical constraints upon parliamentary sovereignty that already exist thanks to the binding effect upon the UK of its international obligationsincluding under EU law and the ECHRwould move to the domestic centre-stage, as national courts would acquire the authority to invalidate legislation that was found constitutionally wanting. Whether this amounts to a utopian or a dystopian vision of a future UK constitution is a matter of opinion. What is less contestable is that to go down this road would represent a break with tradition. Recent constitutionalization of the judiciarys role notwithstanding, it is clear that a written constitution would create the possibility of a judiciary equipped with far greaterand more legally securepowers. This, in turn, would facilitate the adoption of a more-legal approach to constitutionalism: one that relied more fully upon the courts to uphold legal-constitutional values and rights, and which (necessarily) reposed less trust in the sort of voluntary restraint and mutual respect upon which the current system relies. An inevitable consequence would be a transfer of authority from the elected branches to the courts, which would, in some areas, become the principle site of debate concerning matters of public policy. Whether a codified constitution produced such changes would, however, turn not upon the fact that it was codified, but upon its exact terms. A written constitution does not, for instance, have to hand the last word to the courts over every (or any) constitutional matter. An obvious alternativeand one that would strike a different balance between judicial and political power would be a dialogic model, according to which the courts would be accorded an enhanced voice in relation to constitutional matters, without giving them the final say. Such an approach is already evident to some extent in the HRA,
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Written evidence submitted to Political and Constitutional Reform Committee Dr Mark Elliott, Faculty of Law, University of Cambridge

which allows the courts to pronounce upon the compatibility of primary legislation with Convention rights, whilst leaving it to the political branches to decide how (if at all) to respond in the event an incompatibility being judicially declared. A stronger version of this model might be contemplated under a written constitutionbased, perhaps, on the Canadian model, which allows courts to invalidate legislation but provides also for subsequent legislative override of such judicial decisions. 9 Nor would a codified constitution necessarily have to accord to the courts the same amount and type of power in relation to each and every matter. It might, for instance, be felt that courts ought to be given the final word about the demarcation of authority between different tiers of government, but that the political branches should retain a stronger voice in relation to contestable issues of rights 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 in detail. Rather, they are mentioned simply in order to illustrate the point that deciding to adopt a codified or written constitution is not in itself determinative of the role that the judiciary would play thereunder. Certainly, the adoption of such a constitution would make it possible to carve out for the courts a different and more extensive role than that which they are currently acknowledged to play. But it does not mandate that judges must be accorded such a role. A codified, hierarchically-superior constitutional text would then open up possibilities vis--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 judiciarys role would change under a written constitution, it in fact poses the wrong question. The real issues are how (if at all) the judiciarys role should be changedand, 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.

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Canadian Charter of Rights and Freedoms, s 33.

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