Judging the Constitution: What role should the UK Supreme Court play in ... any question necessary to be determined for
Judging the Constitution: What role should the UK Supreme Court play in determining the constitutional law of the UK? The oft-cited unwritten nature of the UK’s constitution means that its internal machinations are seen only in glimpses, on a case-by-case basis, when the judicial spotlight is shined upon them. These glimpses show that constitutional norms within the UK have evolved at a prodigious rate in recent years, with the shifting sands of the constitution being occasionally prodded by externalities such as the CJEU and the ECtHR. A particular stirring has occurred in the rebranding of the former House of Lords in the Constitutional Reform Act 2005. In creating a physically separate Supreme Court that, pursuant to s.40(5) of the Act, “has power to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment”, the question is whether the Supreme Court has acquired the status of the jurisdiction’s constitutional arbiter. The classic position is that the UK does not have a ‘constitutional court’, but this position was recently tested in Local Government Byelaws (Wales) Bill 2012 – Reference by the Attorney-General for England and Wales. As Lady Hale recognised extra-judicially, “It comes before the Court, not in a concrete case, but as pure constitutional review along continental lines.” The case was an abstract constitutional query, attended by the AttorneyGeneral, Counsel General for Wales, and the Attorney-General for Northern Ireland, and as such has the possibility of becoming a future waypoint whence the Supreme Court took its first steps as a constitutional court. There has been an explosion in judicial review in recent decades, where all courts have had to grapple with political decisions in the legal arena, and the Supreme Court has obviously engaged in such constitutional wrangling. Whilst the Court was never intended to become a ‘constitutional court’in the sense that it would have the power to strike down legislation, s.3 Human Rights Act 1998 creates an attenuated version of that power which, coupled with the infamous Factortame (No.2) decision in the European context, may well have started the Court on a trajectory that the 2005 Act has further accelerated. Lord Neuberger has stated that the increased influence of human rights impelled the creation of a Supreme Court in requiring a clearer separation of powers. However, if human rights are an impeller driving forward the Court’s development, one wonders whether the Supreme Court should pursue such ideals in a stronger, more constitutional, capacity? Accordingly, the Court might start to follow the same trajectory as foreign constitutional courts. In the same way that the US Supreme Court tracks the constitution, the UK Supreme Court might follow human rights as its leit-motif. However, if the Court’s constitutional sword is or is going to be the Human Rights Act, what would happen if that sword was taken away? Whilst remote, it is a political possibility that the UK will insulate itself further from European human rights – either through withdrawal, or the implementation of a ‘British Bill of Rights’. It is suggested that, even were this to be the case, the Supreme Court would still be able to use its current principles as a springboard from which it could continue to apply central ideas of procedural fairness, equality, and
respect. If seen at all, such a change would likely be observed in an initial judicial reticence to take an overly rights-centric view, that reticence then being gradually relaxed, until the Court realised an even broader remit than the present position given that it would be freed from the limits of legislation. It would doubtless be a significant shift for the Supreme Court to build an extension of its jurisdiction on the foundation of human rights. However, the nature of the ever-evolving UK constitution is that such a shift might happen without any clear turning point. A separate question that should therefore be addressed, now, is whether the Court should follow this trajectory? An explicit constitutional amendment would not be required to convert the Supreme Court into the UK’s constitutional court; the decision of Marbury v Madison was the watershed moment in the USA, and a similar decision might be made in the UK in due course. It is noted that, if human rights are to be the prompt for the Court’s rebirth, s.3 Human Rights Act arguably limits the Court’s ability to hold legislation to be “repugnant to the constitution”and thus be no law at all, but that, equally, nowhere in the US Constitution is there a provision for the Supreme Court to strike down legislation. Were the UK Supreme Court to exercise greater constitutional supervision, it is likely that some change will be necessary to the appointments process to the Court. In the USA, appointments of Justices require the Senate’s approval. Perhaps the UK government has some cognisance of the potentially impending change; amendments to the 2005 Act are proposed in the Crime and Courts Bill 2012-13, which include making the Lord Chancellor part of the panel in selecting the President of the Supreme Court. Whilst heavily criticised, such provisions may be paving the way for the Court to complete its evolution into a constitutional arbiter. Were the Court to take up this mantle and consider questions of constitutional adjudication and matters premised on fundamental rights and freedoms, it would seem that a step would be taken down the constitutional road. This is a step that the Supreme Court has the experience to take – it is well used to addressing such constitutional matters in the guise of the Privy Council. The question is then whether or not the Court has the mandate. As Lady Hale has recognised, “The UK has indeed become a federal state with a Constitution regulating the relationships between the federal centre and the component parts.” What function the Supreme Court component has within this mechanism will be discovered as judicial spotlights are pointed increasingly into its depths, and it will remain to be seen whether the Court will continue taking up the mantle of a constitutional court as it does so.
