Role of the judiciary if there were a codified constitution

03 September 2013

To complement the Committee’s ongoing work on Mapping the path to codifying—or not codifying—the UK’s constitution, the Committee is to undertake an inquiry to explore how the role of the judiciary would change were the UK to move towards a codified constitution, and the challenges that this changed role would present

Terms of reference for the inquiry

The Committee is seeking answers to the following 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? 
  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?
  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?
  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?
  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?
  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?

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