The European Constitutional Divide: Distinct Frameworks for Protecting and Reviewing Rights

This article focuses upon variations between the powers and modes of review of the “quasi-constitutional”[1] UK Supreme Court (UKSC), French Conseil Constitutionnel (CC) and German Bundesverfassungsgericht (BVerfG)[2]. Despite the differences between them, there is no need for the UKSC to be radically reformed to completely mirror these other two courts. This is due to the UK’s constitutional landscape and the fact that the UKSC has already been granted growing powers by the Human Right Act 1998[3] (HRA) and devolution.

Constitutional powers and rights protection

The UKSC has a greater ability to protect constitutional rights after the incorporation of the ECHR[4] into domestic law through the HRA. Like all public bodies, the UKSC must also act compatibly with Convention rights[5]. Despite the UK’s lack of a written constitution[6], the HRA has been identified by Laws LJ in Thoburn[7] as a “constitutional statute”[8]. This has enabled the UKSC to establish a constitutional “starting point” when adjudicating cases; and as Hiebert remarks, became an “explicit part of constitutional considerations”[9]. This concept of a human rights compliant constitution was strengthened by the powers granted by s-3 HRA; where the UKSC must interpret legislation compatibly with Convention rights “as far as it is possible to do so”[10]. This requirement was exercised in the ground-breaking case of Ghaidan v Godin-Mendoza[11]; where the majority of the House of Lords acknowledged the strength of this interpretative obligation by allowing the contested legislation to include couples who were in same-sex relationships, so as not to discriminate. The majority stated that it was their obligation to make the legislation compatible, even if it was primary legislation, so long as the rights-compliant interpretation is in line “with the grain of the legislation”[12]. However, this view can still result in quite a broad power for the court.

Similarly, the CC’s rights protection has not come from a Constitution. The CC declared that the Preamble of the French Constitution and the Declaration of the Rights of Man 1789 had constitutional force in 1971[13]. Byron asserts that the CC thereafter adopted a more explicit role as protector of fundamental rights[14]. By contrast, the BVerfG’s rights protection has always stemmed from the Constitution. Both possess interpretative powers; deciding what the constitutionally acceptable interpretation of a statute is.

One of the most significant variations between the courts is what they can do when a statute is unconstitutional. Through s-4[15] HRA the UKSC can make a declaration of incompatibility, warning Parliament that they should remedy a non-rights-compliant Act of Parliament. They cannot strike down that Act. Parliament has discretion whether to amend or repeal the statute. Alternatively, it can choose to ignore this warning[16].

In stark contrast, both the CC and BVerfG have the power to strike down any statutes which contravenes the Constitution[17]. This significantly goes further than declarations of incompatibility. The BVerfG is as Ginsburg argues, one of the “most influential”[18] courts, due to its willingness to invalidate unconstitutional statutes.

While the BVerfG and CC can strike down all legislation, the UKSC can strike down unconstitutional devolved legislation[19]. The UKSC can do so when the devolved Act has exceeded the power allocated by Westminster or if they have violated ECHR rights, as was recently seen through the striking down of an Act of the Scottish Parliament in Axa[20]. As noted in the case, the devolved powers legislative competences “are not unconstrained”[21] as these non-sovereign institutions are what Hart QC has described as “creature[s] of an Act” [22] of the UK Parliament. Thus, the UKSC retains a role and obligation to oversee and check on these powers.

There have been suggestions that the Rule of Law is the guiding UK constitutional principle[23]. Yet parliamentary sovereignty, despite diminishing prominence[24] remains the leading principle[25]. Nonetheless, even with the BVerfG having more extensive powers, this does not necessitate the need for the UKSC to mirror this. In the UK, ensuring the constitutionality of statutes is a responsibility split by the branches of the state, not only the courts[26]. Thus, reform permitting the UKSC to invalidate primary legislation would dramatically alter the UK’s constitutional landscape and enhance judicial power; something which Lord Neuberger calls “unthinkable”[27]. Such a largescale reform would likely trigger a “constitutional crisis”[28] and is therefore not needed. Shadows of this have already unfortunately been seen, after such aggressive press coverage of the Judiciary in the wake of controversial and “political” decisions such as the Miller[29][30] case.

Furthermore, such reforms would not be strictly needed for human rights protection. Although the UKSC can only warn Parliament by s-4 HRA to a rights infringement, Parliament has remedied all but one declaration[31]. The most prominent example involved discriminatory anti-terror legislation[32] in the Belmarsh[33] case. The BVerfG in slight contrast, could directly invalidate unconstitutional German anti-terror legislation[34][35][36]. Though the House of Lords could not strike down the legislation, this didn’t have a significant impact on the outcome. The s-4 declaration succeeded in inducing Parliament to repeal the statute. Therefore, the current UKSC powers strike the right balance between protecting rights and a desire to uphold parliamentary sovereignty. Although full strike down powers would be “the only way to give the courts the power to fully protect the constitution”[37], with the coercive force of s-4 declarations and an expanding mode of review for the UKSC, one must ask if such reform to the UKSC would truly be necessary to continue to protect rights?

Modes of review

After the French 2008 reforms, the CC now joins the BVerfG in examining both ex-ante abstract (the assessment of the constitutionality of a statute before its promulgation) as well as ex-post concrete review (where the statute is constitutionally examined during ordinary litigation and thus after promulgation)[38]. The CC will now look at claims bought by citizens in ordinary litigation through the “Questions Prioritaires de Constitutionnalité”[39] (QPC) system. Both examine cases brought by members of Parliament with concerns about the constitutionality of a Bill. The BVerfG also assesses complaints launched by individuals[40], or when a concern has been referred by the lower courts.

The UKSC conducts ex-post concrete review. ‘Constitutionality’ can only be assessed after a case has been bought by litigants in the lower courts. However, abstract review on Bills from devolved legislatures can now be conducted. There have been recent references put to the UKSC, notably the Asbestos Diseases (Wales) Bill[41], where the UKSC held that the Welsh Assembly lacked the legislative competence to pass legislation in its intended form, and it therefore could not be promulgated.

Despite Lady Hale observing that the UKSC is becoming a “real constitutional court [even if] not on continental lines”[42], not conducting national ex-ante abstract review like the CC and BVerfG means that the UKSC can only aim to prevent damage before an unconstitutional devolved Act is introduced. However, reviewing Westminster Bills would rightly need to be “considered very carefully”[43] as due to political polarisation, the UKSC could become a tool for opposition parties trying to prevent promulgation of a Bill[44]. This has been evidenced by experience in France, notably when this was the only form of review, with the CC being a “political weapon”[45]. If the UKSC was given politically charged ex-ante cases (especially in the currently hostile political climate), this would constrain the effectiveness of the political and judicial systems. Furthermore, unconstitutional statutes may still be swiftly challenged by being raised in ordinary litigation, and thus the chance to question the statute is still available. This arguably makes the BVerfG the strongest constitutional courts as it has the ability to exercise both types of review.

Conclusion

The UKSC certainly appears to be an anomaly court compared to the CC and BVerfG where constitutional powers and modes of review are concerned. While the CC and BVerfG are arguably more constitutionally focused, the UKSC continues to hold a crucial role in the UK constitutional landscape. It has been argued therefore that there is no need to significantly reform the UKSC in line with the CC and BVerfG. Indeed, even with the dominating parliamentary sovereignty and separation of powers doctrines, the UKSC has gradually been given more constitutional powers to enable it to deal with similar issues to its European counterparts, as seen with anti-terror measures. Lord Neuberger rightly concluded that continental reform of the UKSC would not be worth the expense and confusion when there is no pressing need for it[46].

Bibliography

Primary Sources

Cases

1 BvR 357/05

A (and others) v Secretary of State for the Home Department [2005] 1 AC

Axa General Insurance Limited and others v Lord Advocate and others [2011] UKSC 46

Decision no. 72-44 DC of 16th July 1971

Ghaidan v Godin-Mendoza [2004] UKHL 30

(R) Jackson v Attorney-General [2005] UKHL 56

R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: Reference by the Counsel General for Wales [2015] UKSC 3

Thoburn v Sunderland City Council [2002] 4 All ER 156

Statutes

Anti-Terrorism, Crime and Security Act 2001, c. 24

Aviation Security Act 2005

Constitutional Reform Act 2005 c. 4

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O’Cinneide C, ‘Human Rights and the UK Constitution’ in Jowell J, Oliver D and O’Cinneide C (eds), The Changing Constitution (8th edn, OUP, 2015)

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Stone Sweet A, ‘Constitutional Courts’ in Rosenfeld M and Sajo A (eds), The Oxford Handbook of Comparative Constitutional Law, (OUP, 2013)

Journal Articles and Academic Papers

Cornella V.C., ‘The Consequences of Centralising Constitutional Review in a Special Court; some thoughts on Judicial Activism’, SELA (Seminario en Latinoamérica de Teoría Constitucional y Política) Papers, Paper 39, (2009)

Garlicki L, ‘Constitutional Courts versus Supreme Courts’, 5 International Journal of Constitutional Law 1, 44-68

Hunter-Henin M, ‘Constitutional Developments and Human Rights in France: One Step Forward, Two Steps Back’, [2012] 60 International Comparative Law Quarterly, 167-188

Komarek J, ‘The place of Constitutional Courts in the EU’, [2013] 9 European Constitutional Law Review 3, 420-450

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Robson G, ‘Court Rising?’, (2017) Criminal Law and Justice Weekly 9, 146-150

Lectures

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Neuberger D, ‘Constitutional Role of the Supreme Court in the context of Devolution in the UK’ Lecture at the Lord Rodger Memorial (14/10/2016), (transcript available at https://www.supremecourt.uk/docs/speech-161014.pdf) (last accessed 12/04.2017)

Neuberger D, ‘UK Constitutional Settlement and the role of the UK Supreme Court’ Lecture at the Legal Wales Conference 2014 (10/10/2014) (transcript available at https://www.supremecourt.uk/docs/speech-141010.pdf) (last accessed 12/04/2017)

Reports

Centre for Political and Constitutional Studies King’s College London, Dr Andrew Blick, ‘Codifying – or not – codifying the UK Constitution: a literature review’ for the House of Commons Political and Constitutional Reform Committee, (February 2011) (available at http://www.parliament.uk/pagefiles/56954/CPCS%20Literature%20Review%20(4).pdf) (last accessed 24/04/2017)

House of Commons Political and Constitutional Reform Committee Report, ‘Constitutional Role of the Judiciary if there were a codified Constitution’, (2013-2014) (available at https://www.publications.parliament.uk/pa/cm201314/cmselect/cmpolcon/802/802.pdf) (last accessed 12/04/2017)

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Supreme Court publications

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Official Websites

BVerfG, http://www.bundesverfassungsgericht.de/EN/Richter/richter_node.html

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Newspaper articles

Walker P, ‘Daily Mail accused of an ‘attack on the Rule of Law’ amid criticism of tabloid Brexit legal challenge coverage’, (The Independent, 4th November 2016) (available at http://www.independent.co.uk/news/uk/politics/brexit-legal-challenges-judges-daily-mail-express-sun-uk-newspapers-condemned-a7396961.html) (last accessed 6th August 2017)

[1] Lord Neuberger, ‘UK Constitutional Settlement and the role of the UK Supreme Court’ Lecture at the Legal Wales Conference 2014 (10/10/2014) (transcript available at https://www.supremecourt.uk/docs/speech-141010.pdf), para [24]

[2] Alec Stone Sweet, ‘Constitutional Courts’ in Michel Rosenfeld and Andras Sajo (eds), The Oxford Handbook of Comparative Constitutional Law, (OUP, 2013) 818

[3] Human Rights Act 1998 c. 42

[4] European Convention of Human Rights

[5] See n. 3, s 6

[6] Andrew Harding and Peter Layland, ‘Comparative Law and Constitutional Contexts’ in Erin Orucu and David Nelken (eds) Comparative Law: A Handbook, (Hart Publishing, 2007) 315

[7] Thoburn v Sunderland City Council [2002] 4 All ER 156

[8] Ibid, para [62] per Laws LJ

[9] Janet L Hiebert, ‘Constitutional experimentation: rethinking how a Bill of Rights functions’ in Tom Ginsburg and Rosalind Dixon (eds) Comparative Constitutional Law, (Edward Elgar, 2011), 302

[10] HRA, s. 3

[11] Ghaidan v Godin-Mendoza [2004] UKHL 30

[12] Ibid, para [121] per Lord Roger

[13] Decision no. 72-44 DC of 16th July 1971

[14] Sophie Byron, ‘France’ in Dawn Oliver and Carlo Fusaro (eds) How Constitutions Change: A Comparative Study, (Hart Publishing, 2011) 132

[15] HRA, s. 4

[16] Vernon Bogdanor, The New British Constitution, (Hart, 2009), 59

[17] Tom Ginsburg, ‘Constitutional Law and Courts’ in David S Clarke (ed) Comparative Law and Society, (Edward Elgar, 2012), 291

[18] Ibid, 293

[19] Lord Neuberger, ‘The Constitutional Role of the Supreme Court in the context of Devolution in the UK’ Lecture at the Lord Rodger Memorial (14/10/2016), (transcript available at https://www.supremecourt.uk/docs/speech-161014.pdf), para [13]

[20] Axa General Insurance Limited and others v Lord Advocate and others [2011] UKSC 46

[21] Ibid, para [46] per Lord Hope

[22] David Hart QC, ‘Case Comment: AXA v Lord Advocate – Insurers’ human right not to pay for putting asbestos in employees’ lungs?’ (UKSC Blog, 21st October 2011) (available at http://ukscblog.com/insurers-human-right-not-to-pay-for-putting-asbestos-in-employees-lungs/) (last accessed 17th January 2018)

[23] (R) Jackson v Attorney-General [2005] UKHL 56, para [107], per Lord Hope

[24] See n. 16, 80

[25] See n. 19, para [7]

[26] House of Commons Political and Constitutional Reform Committee, ‘Constitutional role of the Judiciary if there were a written Constitution’, (2014) (available at https://www.publications.parliament.uk/pa/cm201314/cmselect/cmpolcon/802/802.pdf), 17

[27] See n. 1, para [23]

[28] See n. 16, 83

[29] R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

[30] Peter Walker, ‘Daily Mail accused of an ‘attack on the Rule of Law’ amid criticism of tabloid Brexit legal challenge coverage’, (The Independent, 4th November 2016) (available at http://www.independent.co.uk/news/uk/politics/brexit-legal-challenges-judges-daily-mail-express-sun-uk-newspapers-condemned-a7396961.html) (last accessed 6th August 2017)

[31] Colm O’Cinneide, ‘Human Rights and the UK Constitution’ in Jeffrey Jowell, Dawn Oliver and Colm O’Cinneide (eds) The Changing Constitution (8th edn, OUP, 2015) 93

[32] Pt 4 Anti-Terrorism, Crime and Security Act 2001, c. 24

[33] A (and others) v Secretary of State for the Home Department [2005] 1 AC

[34] Donald P Kommers and Russell A Miller, ‘Das Bundesverfassungsgericht: Procedure, Practice and Policy of the German Federal Constitutional Court’ in Andrew Harding and Peter Layland (eds) Constitutional Courts: A Comparative Study, (Wildy,Simmonds & Hill Publishing, 2009), 122

[35] Aviation Security Act 2005

[36] 1 BvR 357/05

[37] See 35, 16

[38] Dr Myriam Hunter-Henin, ‘Constitutional Developments and Human Rights in France: One Step Forward, Two Steps Back’, [2012] 60 International Comparative Law Quarterly, 167

[39] Marie-Claire Ponthoreau and Fabrice Hourquebie, ‘The French Conseil Constitutionnel: An evolving form of Constitutional Justice’ in Andrew Harding and Peter Layland (eds) Constitutional Courts: A Comparative Study (Wildy, Simmonds & Hill Publishing, 2009), 88

[40] See 34, 112

[41] Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: Reference by the Counsel General for Wales [2015] UKSC 3

[42] Lady Hale, ‘The Bryce Lecture 2015: The Supreme Court in the United Kingdom constitution’ at Somervile College, Oxford (5th February 2015), (transcript available at https://www.supremecourt.uk/docs/speech-150205.pdf) 2

[43] See n. 26, 21 per Lord Neuberger

[44] See n. 26, 22

[45] See 39, 85

[46] See n. 19, para [44]