Section A.
The ‘Brexit process surrounds the events of the UK leaving the European Union (EU), which we have been affiliated with since 1st January 1973. It has been a long and continuous process, that still hasn't ended, despite the vote happening on the 23rd of June 2016, and the UK actually leaving the EU on the 31st of January 2020. Brexit has caused various constitutional disruptions, therefore there have been calls for the UK to adopt a codified constitution, like that of the United States (US).
A constitution is a set of rules which establish powers, duties, and various functions of institutions within the UK government. They regulate the relationship between and among the institutions, and most importantly, define the relationship between the state and the individual. To further divide this, we can split ‘constitution’ into ‘codified’ and ‘uncodified’.
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A ‘codified’ constitution is a single document where key constitutional provisions, which are said to be entrenched, are stored, and otherwise known as a written constitution. The codified document itself is authoritative as it constitutes to ‘higher’ law, and it binds all political institutions and includes those that make ordinary law. As the constitution's provisions are entrenched, this means that they are often difficult to amend or, when needed, abolished. A codified constitution sets out the duties, powers, and functions of government institutions. An example would be the US, they have the ‘Bill of Rights and ‘The Constitution of the United States.
On the other hand, an ‘uncodified’ constitution is found in various sources, and unlike codified constitutions, an uncodified constitution isnât authoritative. Unlike the previous, uncodified constitutions are not entrenched, and can be changed through the normal processes for enacting statute law. Uncodified constitutions are not judicial, so in the absence of higher law, judges don't have legal standards against which they can declare that the actions of other bodies are considered constitutional or unconstitutional.
There have been many supporting arguments for supporting the view that the UK should adopt a codified constitution. However, if it were decided to be introduced, it would affect the power of the government, the relationship between the executive and parliament, the relationship between judges and politicians, and individual rights and freedoms.
One argument for a codified constitution would be that it makes rules clearer. The key rules for the constitution would be collected together in a single document and would be more clearly defined than in the current ‘unwritten’ constitution the UK has. Also changing to a codified constitution would create less confusion about the meaning of constitutional rules and enforceable with greater certainty.
Secondly, for a codified constitution there would be limited government and would cut the government down to size. A codified constitution would effectively end parliamentary sovereignty and possibly create an elective dictatorship. This is a constitutional imbalance and the checks and balances already in place would be used by the needs of governments upon the executive, to win elections. For the UK, it relies on the ability of a government to act in any way it wants as long as it remains in control of the House of Commons. It wouldn't be possible for the government to interfere with the constitution due to the existence of higher law safeguarding the constitution.
A codified constitution would enable neutral interpretation and would be scrutinized by senior judges. It would ensure that the provisions of the constitution are upheld by other public bodies. Judges would act as neutral and impartial constitutional arbiters, therefore above politics.
A codified constitution could also be considered to have a greater educational value, as it highlights the central values and overall goals of the political system. It would strengthen citizenship as it creates a more vibrant political identity, which could increasingly become important as the UK grows to become more multicultural.
The strongest argument in favor of a codified constitution is that a codified constitution would protect rights. Individual liberty would be more securely protected by a codified constitution; it defines the relationship between the state and citizens. Furthermore, rights would be clearly defined and easier to enforce, than in the current uncodified system in the UK.
Contrary to the above, there are arguments against the idea of a codified constitution. One would be that a codified constitution is considered rigid as higher law is harder to change than statute law; it's also faster to introduce an Act of Parliament, instead of amending the constitution.
Uncodified constitutions are flexible as they are unentrenched. It's difficult of the constitution to remain relevant due to codified constitutions being rigid and inflexible. Codified constitutions cannot be changed easily, making it difficult to respond to constantly changing political and social circumstances. In the constantly changing, modern environment, it's important for there to be flexibility; codified constitutions are rigid and therefore this would be considered to be a major downside to codified constitutions.
Secondly, another reason to be against a codified constitution is judicial tyranny and democratic rule in the UK. The UK's unbroken democratic rule is often seen as a strength of the uncodified constitutional system. The supreme constitutional authority, for the UK codified constitution, is vested in the elected House of Commons, therefore changes to the constitution can be made via democratic pressure. For example, the powers of the House of Lords, under both Parliament Acts of 1911 and 1949, were decreased after a growing belief that an unelected second chamber shouldn't have the right to block policies of the elected government during scrutiny. Under a codified constitution, judges would be the people policing the constitution, and judges are unelected, and socially unrepresentative which could lead to a democratic deficit, as of a lack in democratic legitimacy. Judges would interpret the codified constitution in a way that isn't subject to public accountability and judges' personal values and preferences, especially in senior judges, could be put forward.
To conclude, the UK shouldn't adopt a codified constitution as the type is rigid and harder to change which is a major disadvantage, especially in today's modern society that is constantly changing. However, supporters of codified constitutions have the opinion that it isn't difficult to change, as essentially it is down to the interpretation of the laws. In the US, their codified constitution has been interpreted to fit in with modern society. Though there is this opinion, one remains that uncodified constitutions are more flexible and easier to change than codified ones.
Another point is that a codified constitution could lead to judicial tyranny; judges shouldn't be able to police the constitution due to being unelected and not being socially representative. Meaning there is a lack of democratic legitimacy and ethnic minorities may not have their views or opinions considered reflected. This lack of legitimacy in democracy amongst judges would create a democratic deficit, meaning it would be unlikely for a codified constitution to be created as it acts as a limiting factor on government power. Codified constitutions stop elective dictatorships and parliamentary sovereignty, so it would be unlikely that government would want to end parliamentary sovereignty so openly when it has already faced scrutiny due to factors such as the EU. The UK leaving the EU created issues of ending parliamentary sovereignty, removing EU regulations, and changing the EU laws already within the UK constitution.
Section B.
The judicial review involves the judiciary (i.e., the courts and judges) scrutinizing anything within their jurisdictions. As per Lord Diplock in CCSU v Minister for the Civil Service, ‘judicial review is the means by which judicial control of executive action is exercised'. It allows people with a sufficient interest in a decisive action, taken by a public authority, to ask a judge to review the lawfulness of an enactment decision, action failure to act in relation to the exercise of a public function. Challengeable decisions could be of local authorities, minister decisions, or those made by committees or panels. Judicial review doesn’t allow the courts to review the merits of actions done by a public authority. For example, they cannot decide whether the outcome of an action or inaction was good or bad and gave the needed outcome; they can only decide if the procedure taken to reach the outcome was lawful, fair, and rational. However, judicial review cannot be used to challenge the legality of an Act of Parliament as decided in R (Jackson) v Attorney General.
To bring a successful claim, Chloe, Richard and Dunja have to fulfill all of the procedural hurdles to bring a judicial review claim. The 'procedural hurdles' or ‘entry requirements for judicial review includes the claim being a matter of public law, not time-barred, is being brought against a ‘public authority, the applicant has locus standi, and there is no ouster clause that restricts the court’s jurisdiction to hear their claim. When a case is won, the following remedies may be possible: court orders (quashing, prohibiting, mandating), damages, injunctions, and any other suitable remedies.
Chloe's eldest daughter, Elizabeth, aspires to attend a prestigious Art College after finishing her GCSEs. After many hurdles in the COVID-19 pandemic, Chloe is concerned that her daughter's mentor teacher could be made redundant which could harm Elizabeth's performance in her art exam to get into art college. Chloe emailed her local MP and the Secretary of State for Education, 2 days after the school breaks the news about the planned redundancies.
The first hurdle of this being a matter of public law could be satisfied as redundancies around the UK in schools could affect many students. Section 10 of the Lockdown Education Act 2021 (fictitious), states that 'any challenge to the use of the powers in the act must be presented within 28 days of the use'. Therefore, Chloe's actions of sending the email would be classed as applicable to the entry requirements. It is also being brought against a public authority, in this case, it would be the local MP she emailed and the Secretary of State for Education; this requirement is satisfied. The hurdle of locus standi (the right to bring an action or to appear in court) can be satisfied too. To have locus standi in relation to judicial review proceedings, under Section 31(3) Senior Courts Act 1981, the applicant must demonstrate they have sufficient interest in the subject matter of their raised issue. Therefore, this would be considered to only be in the interests of Chloe and Elizabeth, as there is no others stated to have supported this action. It would be here where Chloe would fail the entry requirements and would be unable to bring a judicial review claim.
Richard's anti-lockdown protests make him very active on social media, and writes to all sitting cabinet members, stating that the government's response to COVID-19 is an ‘affront to liberty. In one letter to the Secretary of State for Education, he stated that the Lockdown Education Act should be scrapped, and children shouldn’t be ‘locked out’ of school because ‘people are afraid of the sniffles’.
Firstly, this is a matter of public law, and isn't time-barred due to the constant social media activities he is conducting, and the writing of many letters of concern to all sitting cabinet members. Richard has brought his concerns to every local authority available, therefore the third procedural requirement for judicial review has been satisfied. Regarding locus standi, Richard, with a social media following of individuals supporting his theories and ideas, can complete this entry requirement. The next requirement is for there not to be an ouster clause that restricts the court's jurisdiction to hear the claim; this includes any provision from the European Communities Act 1972, Northern Ireland Protocol Provisions, European Union (Withdrawal) Act 2018, and any other legislation or convention. Essentially, ouster clauses are inserted into pieces of legislation that attempt to exempt certain act and decisions of the executive from being susceptible to judicial review. The ouster clause procedural hurdle, as there could be no reason why this can't be put into the courts as it is a matter of public interest, as it enables the courts to evaluate the way the government has acted. Therefore, all of the entry requirements have been fulfilled.
A possible remedy for Richard could be a quashing order, made by the court, which nullifies the successfully challenged, making it as if the original decision never happened.
One substantive ground of judicial review that could be applied for Richard is ‘illegality’ under the subsection of ‘relevancy’. When making decisions and exercising their powers, public authorities must consider all relevant issues and considerations. If a public authority fails to consider all relevant issues before using power or deciding, then its actions may be unlawful, and the court will find illegality has occurred. An example of this would be R v Secretary of State for the Home Department, ex parte Venables, where it discussed the Criminal Justice Act 1991 powers that the Home Secretary has when deciding the minimum sentence for minors sentenced to severe jail terms. As a result, the House of Lords held that the Home Secretary's use of power was unlawful, as it had been driven by irrelevant considerations, such as public opinion.
Dunja is a headmistress of a private boarding school for boys, is also Chair of the UK Secondary Education Pedagogy Society, an interest group that meets to share research and approach the education of teenagers. Dunja heard about the letter from the Secretary of state from a friend, sharing the concern that any reduction in the accessibility of arts and crafts could be detrimental to teens' educationmental wellbeing.
This is a matter of public law and is within the required 28 days. Dunja's friend brought the issue, by letter to the public authority, who in this instance was the Secretary of state. As Dunja is the headmistress and is chair of the above-stated society, locus standi can be fulfilled, as there is sufficient interest in the issue from both teachers, pupils of the school, and members of the Secondary Education Pedagogy. There would be no ouster clause that would restrict the court's jurisdiction to hear the claim.
A possible remedy for Dunja's judicial review issue would be a mandating order, which is where the court makes an order specifying how a public order should rectify the situation.
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