Looking forward, not back: situating ex ante review in UK constitutionality

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"RESEARCH CONTEXTCurrently understood constitutionality evaluates an enacted law's compliance with constitutional principles or a codified constitutional text ex post facto (Elliott, 2001). This is a judicial task (Black-Clawson International [1975] AC 591), reliant on judicial hindsight. This orthodoxy ignores the deliberative and advisory foresight by legislators and executive actors before a law is formally enacted (ex ante review), due to the separation of powers (Bennion, 1993), thus hermetically sealing each branch of the state.The problem with this approach is that a law's constitutionality can be disconnected from the circumstances of its enactment, stultifying interaction between state actors (Vanberg, 2001). Judicial questions as to statutory 'intent' to assess constitutionality are fundamentally fictive, since the real 'intent' in terms of non-judicial foresight is ignored (Black-Clawson). The result can lead to legal black holes such as reviewability of apparently unreviewable tribunals (Privacy International [2019] UKSC 22) and statutory provisions being rendered unenforceable (Miller 1 [2017] UKSC 5).This problem of disconnection has seen a hardening of constitutional doctrine with state institutions blaming one another for constitutional dysfunction (BBC, 2019) and a reactionary response in attempting to circumscribe the judiciary and radically alter constitutional doctrine (Ekins, 2019). This demonstrates the propensity for constitutional upheaval (Vermeule, 2019).With little literature on ex ante review in the UK, existing literature in comparable jurisdictions (Appleby, 2017; Bauman, 2009) considers such review as a shadow constitutionality review, with ex post review continuing to dominate constitutional doctrine (Elliott, 2001). This fails to explore how ex ante and ex post review could be synergised, contributing to the hardening of constitutional doctrine as above. There is thus a need to consider constitutionality in jurisdictions with traditions of ex ante review and perspectives of ex ante actors to subvert an increasingly hardening orthodoxy and better frame constitutionality in the UK.AIMS AND OBJECTIVESThis project aims to subvert the ex post orthodoxy of constitutionality. Rather than being a 'shadow' review as currently understood, this project will explore and situate ex ante review within a heterodox understanding of constitutionality (including ex post review) drawing on doctrinal understandings in different jurisdictions and the perspectives of all UK state actors. The goal is to better frame the doctrine of constitutionality as a synergy between different state actors. RESEARCH QUESTIONSHow can the processes and outcomes of ex ante review be normatively situated within the understanding of constitutionality in the UK?Component questions:1. How do comparable jurisdictions with varying degrees of formal and informal ex ante review (Australia, Canada and France) understand constitutionality in light of such review?2. What are the processes of ex ante review in the UK (devolved and central levels of government)? 3. How does ex ante review inform the constitutionality perspectives of judicial and non-judicial actors in the UK?POTENTIAL APPLICATIONS AND BENEFITSThis project should be of great value to legislators and policymakers as well as those who scrutinise lawmaking processes."