Subject IV. B. 2 (Constitutional Law):
CONSTITUTIONAL COURTS AS “POSITIVE
LEGISLATORS”: United Kingdom
John Bell (Cambridge, England)
Introduction and terminology
Particularly English lawyers have problems with the terminology of “constitution” and
“constitutional judge”. It is perhaps symptomatic that in a major reflective work on the
British Constitution in the twentieth century1, the editor’s introduction does not discuss the
courts at all and the writer of the chapter on the courts focuses on the “Government and the
Judiciary” and begins by saying “For much of the twentieth century the judiciary has been
thought of more as a dignified than an effective element in the constitution.”2
Constitution: There is a British Constitution, even though it does not consist of a single
consistent and overarching document. Trevor Allan3 talks of a “common law constitution” as
a set of legal principles and rules which have been laid down from time to time, typically by
judges. In addition and of increasing importance are statutes. There is no procedural or formal
distinction between a “constitutional” statute and an ordinary statute. For example, the
Constitutional Reform Act 2005 was passed by exactly the same procedure as any other
public and general statute, despite its acknowledged constitutional importance. In these
respects, the British Constitution is now unusual, but it has very similar features to the French
Third Republic (1870-1940), which was the longest lasting of the 15 French constitutions to
The result of these features is that the very label “constitutional” attached to a legal rule or
principle can be controversial. There are no agreed criteria by which such rules and principles
can be identified, other than by agreement of the legal and political communities.
A further complication is the fact that British jurists attach the label “constitutional” to non-
legal rules, especially conventions of the Constitution. These conventions are rules of
political morality and not merely practices or habits.4 Such conventions are not merely
supplementary to the law, but may contradict it. For example, in law the Queen has a
discretion to refuse to sign an Act of Parliament , but well-established convention denies her
any discretion in the matter.5 Again, this is not a peculiarity of the British Constitution.6 But
the application of the label “constitutional rule” to both legal and non-legal values can make
legal debate confusing for outsiders. For example, the prime ministers of the British Empire
(as it then was) agreed in 1931 that the UK Parliament would not legislate for Dominions
V. Bogdanor (ed.), The British Constitution in the Twentieth Century (London: British Academy 2003).
Robert Stevens, ibid., p. 333. See also David Robertson, Judicial Discretion in the House of Lords (Oxford:
Oxford UP 1998).
T. Allan, Law, Liberty and Justice: The Legal Foundations of British Constitutionalism (Oxford: Oxford UP
G. Marshall, Constitutional Conventions (Oxford: Oxford UP 1984), pp. 8-9.
Ibid, pp. 21-23.
See P. Avril, Les Conventions de la constitution (Paris: Leviathan 1998).
without the consent of their Parliaments. When this was implemented in relation to the
repatriation of the Canadian Constitution in 1981, the question arose as to the legal
implications of the 1931 agreement, passed as the Statute of Westminster.
It is typical that one of the most important constitutional reforms in recent years, the
introduction of sets of ethics for the conduct of public affairs, should have been achieved
without legislation or any legal constitutional text. The ‘Nolan principles’ governing
standards in public life7 introduced in 1995 a set of values governing the holders of a range of
public offices. These principles have led to major changes in the procedures for appointing all
kinds of public official (including judges). Some of the specific changes were introduced by
law, but most have not needed more than convention as guidance. The key feature of the
process for this paper is that the person who chaired the Commission was a judge (Lord
Nolan, a member of the House of Lords). He was chosen because a judge gave the required
status of independence to the process. But at the end of the day, the actual rules produced
were not legal.8
Constitutional Judge: There is no special court to deal with constitutional matters as such. As
will be seen, there is no formal process of “constitutional review” and so it is not surprising
that there is no special judge for such matters. Even the creation of the Supreme Court from 1
October 2009 does not significantly change this position.9
The term “judicial review” in Britain is normally restricted to the review of administrative
action by government or other public bodies. For that reason, the term “constitutional review”
is preferred in this report.
The General Reporter writes that: “the main purpose of the Report is also to analyze in a
comparative way, the most important cases of judicial activism and decisions issued by
constitutional judges or constitutional courts or tribunals that have contributed to shape these
new functions of the constitutional judges when interpreting the Constitution, well beyond
their original ‘Negative Legislator’ character.”
In one sense, Britain has neither “specific constitutional or statutory provisions that empower
constitutional judges, by means of interpreting the Constitution, to adopt obligatory decisions
on constitutional matters” nor specific decisions on constitutional matters. But this would be
too simplistic an approach. The nature of a common law constitution is that the basic “rules
of recognition”10 are not contained in statute, but are in the common law. The principles are
rather like the “fundamental principles recognized by the laws of the Republic” in French
law, which are not laid down by statute, but which are judicially identified, even if formally
not created by judges.11 There do arise a number of issues on which ordinary judges have to
take decisions which are binding and which could be characterized as constitutional.
Standards in Public Life (Cm 2850-I, 1995): see generally J. Jowell and D. Oliver, The Changing Constitution
(6th edn, Oxford: Oxford UP 2007), ch. 17 and the Committee on Standards in Public Life: http://www.public-
For further comment, see R. Stevens, The English Judges (Oxford: Hart, 2002), pp. 55, 70-1 and 84.
H.L.A. Hart, The Concept of Law (2nd edn., Oxford 1994), pp. 153-4, 256.
See J. Bell, French Constitutional Law (Oxford: Oxford UP 1992), pp. 68-73.
I. CONSTITUTIONAL (JUDICIAL) REVIEW CONCENTRATED OR
Constitutional review is essentially distributed. The absence of formally distinct
constitutional rules makes this more or less inevitable. All legal disputes go to ordinary
judges. For example, the compatibility of a British statute concerning the limits for fishing
with European Union law was raised and decided by the lowest tier of criminal law courts,
the magistrates’ court.12 Matters may be appealed up to the highest courts within the national
(English and Welsh, Scottish and Northern Irish) jurisdictions and, in many cases, on to the
British Supreme Court, but there is no preliminary reference procedure.
There are three exceptions. Firstly, in relation to devolution matters, the question of the
validity of the legislation of the three devolved assemblies (Wales, Scotland and Northern
Ireland) can be referred to the Supreme Court either by the British Secretary of State, the
British Attorney-General, or the national Attorneys-General (or equivalent) or by the national
courts before which the issue is raised.
Secondly, courts in any part of Britain can refer to the Supreme Court questions concerning
the interpretation of the Human Rights Act 1998. This statute is a major constitutional statute
on fundamental rights. The Act implements the European Convention on Human Rights and
it can lead to either the narrowing of the scope of legislation by means of an interpretation
which makes the statute compatible with the Convention, or a declaration of incompatibility,
which empowers a minister to amend or repeal an incompatible statutory provision.13
Thirdly, as in any Member State of the European Union, a court seized of a question
concerning the compatibility of British law with EU law, can refer the issue to the European
Court of Human Rights or, if the matter does not give rise to a serious difficulty (it is an acte
clair) in interpretation, it can apply European law directly itself. Either as a result of a ruling
from the ECJ or on application of the acte clair doctrine, the British court may refuse to
apply a British statute.14 This was not explicitly decided by Parliament in the European
Communities Act 1972, s. 2(4). It remained discussed by the British judges, but was not
definitively adopted until the European Court of Justice had specifically stated that the British
courts ought to disapply a British Act of Parliament incompatible with European legislation.15
In that case, the issue was raised by way of an action for judicial review against the decision
of a minister. In subsequent cases, the courts have accepted that a declaration can be granted
where British legislation is incompatible with European Union law.16 Craig notes that in this
case, the House of Lords made its ruling about the incompatibility of national legislation with
EU law without the need for a reference to the ECJ.
For example, Case 63/83, R v Kirk  ECR 2689;  3 CMLR 522.
See N. Bamforth, ‘Parliamentary sovereignty and the Human Rights Act 1998’  Public Law 572.
Case 283/81, Srl CILFIT v Minister of Health  ECR 3415, E. Mancini and D. Keeling, ‘From CILFIT
to ERT: The Constitutional Challenge facing the European Court of Justice’ (1991) 11 Yearbook of European
Compare R v Secretary of State for Transport, ex parte Factortame Ltd  2 AC 85 with R v Secretary of
State for Transport, ex parte Factortame Ltd (No.2)  1 AC 603. See further P.P. Craig, ‘Sovereignty of
the United Kingdom Parliament after Factortame’ (1991) 11 Yearbook of European Law 221.
R v Secretary of State for Employment, ex p. Equal Opportunities Commission  1 AC 1; see generally
Jowell and Oliver, op.cit., ch. 4.
In these three ways in particular, the British courts are creating rules, mainly through
interpretation of key constitutional statutes, which are obligatory.
II. SPECIFIC ISSUES
1. Constitutional review procedures
Apart from devolution issues, where certain ministers can raise issues by way of abstract
review without needing to have a specific interest, all other questions have to be raised by
way of ordinary litigation for which the person will require an interest.
There have been some cases of public interest litigation concerning the validity of legislation.
Most recently in Jackson v Attorney-General,17 the applicant alleged that an Act of
Parliament had been passed by a wrong use of the procedures laid down in the Parliament
Acts 1911 and 1949. The House of Lords was prepared to examine the argument, only to
reject it by deciding on limited grounds that there was no valid challenge to the validity of the
Hunting Act 2004. The House was unwilling to discuss the broader questions of how far an
Act of Parliament could redefine parliamentary procedures for the future. It certainly did not
provide future guidance about how Parliament should vote on bills in the future. In general,
there needs to be a specific interest (e.g. as a person who is involved in hunting). But
occasionally, the issue is so important that any voter has the right to bring a challenge to the
law’s validity.18 But generally, a personal interest is required.
A number of key issues are not considered to be justiciable and are resolved only by the
internal processes of Parliament. The key issues are first the process within Parliament for the
passing of legislation,19 and secondly the designation of specific legislation as a “money bill”
(finance law) which allows certain more rapid procedures to be used within Parliament under
the Parliament Act 191120. In many other countries, both issues would give rise to
constitutional litigation, and the courts could serve as positive legislators in prescribing
principles for the use of procedures. In Britain, decisions on such issues with regard to the
Westminster Parliament are strictly for the Speaker. In relation to devolved Parliaments, the
only matters that can be challenged in the courts are matters concerning the competence of
the legislature, not the failure to follow rules of parliamentary procedure.
2. Judicial Decisions21
UK courts have limited competence to undertake any of the declaration of the
unconstitutional character of statutes, annulment (total or partial) of unconstitutional statutes,
constitutional mutations, and constitutional manipulations.
 1 AC 262. See A.L. Young, ‘Hunting and sovereignty: Jackson v Her Majesty’s Attorney-General
 Public Law 187; R. Cooke, ‘A constitutional retreat’ (2006) 122 Law Quarterly Review 224.
R v Secretary of State for Foreign Affairs, ex p. Rees-Mogg  QB 552.
Pickin v British Railways Board  AC 765. This only applies to the passing of UK legislation of the
Westminster Parliament. The legislation of subordinate parliaments, e.g. the Scottish Parliament, is subject to
constitutional review: Anderson et al v Scottish Ministers  UKPC D5;  2 AC 602.
This is decided by the Speaker: see W. McKay (ed), Erskine May’s Treatise on The Law, Privileges,
Proceedings and Usage of Parliament (23rd edn, London: Lexis-Nexis 2004), pp. 928-9.
See generally, J. Bell, Judiciaries within Europe (Cambridge: Cambridge UP 2006).
The UK judges have no power to strike down legislation of the Westminster Parliament,
except in the limited area of the compatibility with EU law (see above). There have been few
decisions in this respect. Nearly all the decisions have involved a decision from the European
Court of Justice. No legislation of the Scottish Parliament or of the Northern Ireland
Assembly has been annulled on this ground.
No legislation of any of the devolved assemblies has been annulled and there have been only
a few decisions, mainly on human rights issues that have discussed the possible constitutional
invalidity of the legislation of devolved assemblies. 22 So the only area in which the judge has
had scope to be a positive legislator is in the area of human rights.
Human Rights and judicial activism
The Human Rights Act 1998 was, according to Stevens, predominantly psychological in its
impact.23 For many years, judges had already been using the European Convention as a
benchmark for the interpretation of English law. The interpretative obligation in s. 3 of the
Act did not add anything formally new. But the formal power to give a declaration of
incompatibility provided an additional way of altering the government’s agenda. When a
declaration is given, then the Government has to decide whether to propose an amendment of
the law to bring it into line with the Convention or to take other action to maintain the
incompatibility, e.g. by registering a formal derogation from the Convention. This is the
nearest that English judges come to a constitutional review. 24 An example was A (FC) and
others v Secretary of State for the Home Department25 in which a number of individuals
challenged their detention without trial. They were held because they were suspected of being
a danger to national security, but they could not be expelled to another country. The House of
Lords held that s. 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible
with articles 5 and 14 of the European Convention insofar as it is disproportionate and
permits detention of suspected international terrorists in a way that discriminates on the
ground of nationality or immigration status, and it quashed the Government’s derogation
from the Convention. Lord Bingham26 stated that
[T]he function of independent judges charged to interpret and apply the law is
universally recognised as a cardinal feature of the modern democratic state, a
cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on
the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-
making as in some way undemocratic. It is particularly inappropriate in a case such as
the present in which Parliament has expressly legislated in section 6 of the [Human
Rights Act] 1998… to render unlawful any act of a public authority, including a court,
incompatible with a Convention right, has required courts (in section 2) to take
account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far
as possible, to give effect to Convention rights and has conferred a right of appeal on
derogation issues. The effect is not, of course, to override the sovereign legislative
authority of the Queen in Parliament, since if primary legislation is declared to be
See B.K. Winetrobe, in Jowell and Oliver, ch. 9 at pp 223-4; C. McCrudden, ibid, ch. 10. The most significant
effect of the human rights provisions of the devolution legislation was to lead the courts to quash pre-devolution
legislation which permitted the appointment of temporary judges (“sheriffs”) and was held to be contrary to the
independence of the judiciary: Starrs v Ruxton 2000 JC 208.
R. Stevens, The English Judges, 115.
See C. Gearty and A. Tomkins in D. Hayton (ed.), Law’s Futures (Oxford: Oxford UP 2000), ch.4.
 HL 56.
 HL 56, para. 42.
incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy
lies with the appropriate minister (section 10), who is answerable to Parliament. The
1998 Act gives the courts a very specific, wholly democratic, mandate.
The significance of human rights cases in the recent case-load of the House of Lords suggests
that the new Supreme Court will have a significant constitutional function.27 The criticism of
the legislature in this case covered both the substance of the legislation (detention without
trial) and the derogation from the European Convention. In effect, the judges prevented the
legislature carrying out a policy in relation to terrorist suspects which they considered to be
disproportionate to the demonstrated threat the individuals posed.
Stevens28 demonstrates the importance of the judiciary in relation to the protection of
prisoners against harsh treatment. Particular areas of concern have been indefinite sentences,
where the executive had traditionally made the final decision on release. In relation to
prisoners on indefinite sentences (usually minors) and life sentence prisoners, the exercise of
judicial review of administrative action by the courts even before the Human Rights Act (but
influenced by the European Convention) ensured that the executive set out criteria for the
detention of individuals. One particular area of conflict was in relation to the management of
life sentences. When the young killers of a child had been sentenced to detention at Her
Majesty’s pleasure, the Home Secretary sought to impose a minimum period of detention
without examining the interests of the child killers in question. The minister was under
immense political pressure in this case, but the House of Lords held that he needed to act like
a judge and was wrong to be inflexible in the exercise of his discretion.29 In this respect, the
judiciary forced an approach on government that was more focused on the merits of
individual prisoners and their need for future punishment, as opposed to the generality of
prisoners of a particular category.
More typical is the decision in R (James) v Secretary of State for Justice,30 in which a claim
was made by prisoners on indeterminate sentences that they were being denied reasonable
access to courses of treatment which would enable them to show at the end that they were
ready for release. The claimants succeeded at first instance. The Secretary of State conceded
before the House of Lords that he had failed in his duty to make reasonable provision for
such courses. But the prisoners failed in their claim that the continuation of their detention as
a result of this failure made their detention unlawful.
The basic principle is that the court does not substitute itself for the legislature.
Increasingly, human rights litigation gives the judge the power to make decisions which
supplement the jurisdiction of the legislator or the administration. There are three areas in
which judicial decisions have become important: the rights of asylum seekers, the release of
prisoners and moral matters concerning the beginning and end of life.
Moral matters of social controversy which is not party-political are typically raised by way of
a claim for a declaration. Parliament is often unwilling to engage in these matters which are
socially divisive and where no broad political consensus can be reached. Thus the decision of
a minister to approve the distribution of contraceptives by doctors to children under 16
See Jowell, in V. Bogdanor, The British Constitution in the Twentieth Century at pp. 390-5, and D. Feldman,
ibid., ch 11.
Stevens, English Judges, pp. 71-2 and 129-36.
R v Secretary of State for the Home Department, ex p Venables  AC 407.
 UKHL 22.
without the consent of their parents was examined by the courts and upheld.31 Equally the
application of the abortion law to new techniques which permitted the medical process to be
supervised by a nurse and not a doctor.32 In both cases, the legality of governmental circulars
was tested and supported by the courts. In other cases, there is no established policy issuing
from government, and so the courts are invited by the parties to lay down guidelines. For
example, in relation to the sterilisation of intellectually handicapped adults,33 the House of
Lords laid down principles which would govern the approval of such cases. In a more
individual case, the Court of Appeal approved the separation of conjoined twins, even though
one of them would die as a result.34 A very good example of this area is Airedale NHS Trust v
Bland.35 In this case, a man was in a permanent vegetative state, but his body was still
functioning, provided that he was fed through a tube. The House of Lords decided the
circumstances in which the doctors could lawfully accede to the wishes of his parents that the
feeding stop and that he be allowed to die. Clearly the judges were having to establish
policies on medical treatment and the point at which actions of the doctor would amount to
murder, which were extremely controversial. These are clear cases of the judges making the
law in areas where there was inadequate previous precedent or statute.36 The policy laid down
was then to be applied to other situations in the future where doctors would be called upon to
decide to terminate treatment. Unlike in the parole cases, there is no conflict between the
executive and the courts.
In relation to assistance for suicide, there have been several attempts to use human rights
legislation, especially the protection of private life (art. 8 of the Convention) to require
prosecutors to declare their policy in dealing with future assistance for suicide. The first of
the leading cases, R (Pretty) v Director of Public Prosecutions (Secretary of State for the
Home Department Intervening),37 concerned the question of whether the Director of Public
Prosecutions could be required to rule in advance whether a husband would be prosecuted for
assisting his wife to commit suicide when she was physically unable to take all the steps
herself. Aiding and abetting suicide is an offence contrary to s. 2(1) of the Suicide Act 1961.
The European Court of Human Rights decided that this decision did not breach Mrs Pretty’s
right to a private life (and thus to self-determination). More recently in R (Purdy) v Director
of Public Prosecutions,38 the House of Lords was invited to rule that the Director of Public
Prosecutions should set out his policy in relation to a husband who might accompany his wife
to Switzerland, where she could lawfully commit suicide. Here the majority of the members
of the House of Lords held that it was unreasonable of the Director to refuse to set out the
principles on which he would exercise his discretion to prosecute in such cases, when there
was legal uncertainty. The decision is all the more important because, on 7 July 2009, the
House of Lords in its legislative capacity had refused to vote for an amendment to a bill that
would have made it lawful for a person to assist another to leave the country to commit
suicide elsewhere. The House of Lords in its judicial capacity decided Purdy on 30 July 2009
and was very clear that it was not making such assistance lawful. It was merely requiring the
DPP to make his prosecution policy explicit. Human rights considerations, as well as broader
principles of legal certainty, led the House of Lords to put the matter back on the agenda of
Gillick v West Norfolk and Wisbech Health Authority  AC 112
Royal College of Nursing v DHSS  AC 800; J. Bell, Policy Arguments in Judicial Decisions (Oxford:
Oxford UP 1983), pp. 88-90.
Re F (Mental Patient: Sterilisation)  2 AC 173.
Re A (Conjoined Twins: Surgical Separation)  4 All ER 961.
 1 All ER 821.
For a political analysis, see D. Robertson, Judicial Discretion in the House of Lords (Oxford 1998), 381-90
 UKHL 61,  1 AC 800
 UKHL 45.
the executive. But the House refused to give guidance to the DPP on how to frame his
discretion. Lord Hope remarked that “We do not venture into that arena [of whether to
legalise giving assistance to travel abroad to commit suicide], nor would it be right for
us to do so. Our function as judges is to say what the law is and, if it is uncertain, to
do what we can to clarify it.”39
So in relation to the moral issues, the courts have generally not written the policy, but rather
have endorsed the policy of the relevant ministers. But in relation to comatose individuals,
they have produced rules in Bland or with sterilization which have provided rules for future
application in the absence of any authoritative pronouncement by government, e.g. in the
form of a ministerial circular. There is a particular niche within the British political process
for the courts to be a forum in which certain moral issues are determined.40
3. Effect of decisions
Apart from specific powers under EU law where the ECJ can declare decisions applicable ex
nunc, all decisions are applicable ex tunc. The retrospective effect of human rights decisions
can obviously pose problems. In practice, the principal forms of action giving rise to review
of the decisions of the legislature will be in the form of declarations. This allows the
administration time to come up with a solution.41 The ECJ can make rulings that are ex tunc
or that are suspended in their application.42 So the combination of these features limits the
retrospective application of wide-ranging decisions.
 UKHL 45, para. 26.
In some areas, such as bioethics, a similar function is performed by the Human Fertilization and Embryology
This was the case, for example, in A(FC), above note and R (James), above note
See Case 262/88, Barber v Guardian Royal Exchange  ECR 1889 on redundancy pay and occupational
pensions was only effective ex tunc as an interpretation of Community law.