Monday 8 February 2016

A Constitutional Court for the UK? A recipe for complication, for cost and for unnecessary duplication (Lord Neuberger)

Lord Neuberger - President UKSC
In December 2015 the Secretary of State for Justice and Lord Chancellor - Michael Gove MP -  attended the House of Lords Constitution Committee - previous post.   His evidence was mainly concerned with the government's idea of a British Bill of Rights and repeal of the Human Rights Act 1998 and those plans have yet to see light of day.  (For a look at the current state of play on this issue see Rightsinfo - What's going on with the British Bill of Rights?)

Mr Gove indicated that one reason for the delay to publication of government plans for human rights protection is due to the Prime Minister asking whether the Bill of Rights might be used to create a constitutional court for the UK and, if so, might the Supreme Court of the UK be given that role. The rationale
for such a Constitutional Court appears to be that it would act as some sort of "constitutional long stop" preventing European institutions from being able to alter constitutional fundamentals.  If that is right, it reflects the "Euroscepticism" in British politics. 

The idea of a UK Constitutional Court may also be inspired by continental models such as Germany where there is a formal constitution against which the judiciary can measure domestic legislation and strike it down if it offends the constitution.

All of this is discussed by Jeff King (Senior Lecturer in Law at UCL) in an excellent and very persuasive post* on the UK Constitutional Law blog - On the proposal for a UK Constitutional Court.  King regards the idea of a Constitutional Court as "half-baked, unnecessary, and potentially dangerous" and points out that the government's apparent concerns could be addressed in other less radical ways.  In a letter to The Times, Professor Mark Elliott has also put his concerns.

There can be no doubting that the creation of a Constitutional Court would increase judicial activism and might even lead to greater political involvement in appointments to the court.  As Jeff King points out:  The President of the Supreme Court Lord Neuberger told The Times last week that the idea is a ‘recipe for complication, for cost and for unnecessary duplication’, and the cross-bench peer Lord Pannick added that ‘the proposal has no merit’.

Were the UK to adopt a written (formal) constitution then a judicial process for assessing legislation against that constitution would be required.  The adoption of such a constitution would be a complex undertaking, the inherent flexibility in the UK's present constitutional arrangements would be lost and the constitutional role of the judiciary would be radically changed.   For these reasons I see little appetite among most politicians for such an arrangement as is evidenced by a speech given by the present Attorney-General - The Guardian 8th February

* J. King, ‘On the Proposal for a UK Constitutional Court’ U.K. Const. L. Blog (8th Feb 2016) (available at )

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