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Essay: Constitutional courts

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  • Constitutional courts
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There is no universally agreed definition of a constitutional court (CC). Yet, it is possible to identify common features emanating from a variety of CCs as a sufficient standard to discuss possible UKSC reforms.

There are currently two main CC frameworks; whilst a majority of continental European CCs, including Germany and France, have adopted the centralised Kelsenian model, features of the diffused American model can be found in the UKSC and USSC.
The former permits only a single judicial organ, often-times entirely separated from the judiciary, to perform functions which are considered too politically and constitutionally important to confer to ordinary courts. The interpretive and brokering responsibilities that a majority of European CC’s have, like performing both ex-ante legislative review and abstract ex-post review, allow it to act more like a co-legislator, rather than an interpreter. The latter, in contrast, utilises concrete review of legislation in which all judicial organs possess ex-post power to determine the constitutionality of legislation.

However, as Harding has identified, this binary classification is of limited use in practice. The setup and functions of CCs may be based on the Kelsenian and American models, however, all are subject to the unique political tensions of their jurisdictions. In fact, the constitutional settings of continental European countries differ so significantly, that their raison d’être range from constitutional rights protection in Germany, to monitoring devolutionary powers in Spain and balancing governmental powers in France.

Under current procedures, the UKSC exhibits too many fundamental differences to its European counterparts to be termed a CC; specifically, it lacks independence from the judicial branch to act as broker of conflicts between the branches (French raison d’être) and the ability to enforce the constitution against unconstitutional legislation (German raison d’être). Yet, its similarities – constitutional statutes, ECHR application, devolved competences and application of EU law – can be deemed sufficient to allow for a detailed comparison with the European CCs in order to bring to the fore areas of reform.

1) Aspects of the UKSC layout that should be reformed, based on comparative experience

Judicial appointments: election procedures; background of judges; tenure

Whilst UKSC justices are subject to less politically charged selection procedures then some of its European counterparts, the nominations from the JAC have been criticised for being overtly introverted and impervious to the public sentiment.

Although the objectives of the CRA, Schedule 14, signal a move towards greater separation of powers as well as selection based purely on merit and not political bias, for the UKSC to permissibly defend peoples’ basic rights against Parliament, the bench must itself have democratic legitimacy, typically achieved through appointment by elected officials or after bargaining among political parties.
To prevent the SC from becoming a political tool to advance governmental objectives and “behave (…) as partisans and not as judges”, Stone suggests that the party in power should be denied a veto, justices instead being approved by a majority ruling in both houses of Parliament – this procedure is currently successfully practiced in Poland and Germany.

CCs abroad typically appoint a combination of politicians, academics and ordinary judges to establish a more democratic and specialised outlook on politically and constitutionally sensitive issues. There has been some support that a reformed UKSC should also echo such a diversity in backgrounds, not least to prevent a stagnation of ideas and to balance political tendencies. To achieve this, reforms in the UK could embrace a German-like approach in which knowledge of the constitution/lawsand an age requirement of 40 are the only essential prerequisites; this would mean that respected lawyers, judges and law professors also have the possibility of being considered for the positions.

CC judges in the European model typically serve in fixed-terms of between 9-12 years to ensure accountability. Whilst there is no one right way of appointing judges to these influential positions, the USSC model of granting tenure for life to judges affects the long-term legal and political scene of the country, thus, simultaneously resulting in an overly politicised and fiercely contested re-appointment procedure – instead, a system like in Germany (elections take place every 12 years) or in France (a third of judges get re-elected every three years) should be adopted by the UKSC.

2) Aspects of UKSC activity that, by comparative experience, could be improved

Legislative ex-ante review:

As the raison d’être for the inception of the Conseil Constitutionnel was to broker conflicts between the legislative and executive branches, up to the 2008 constitutional reforms, ex-ante review was the main method for the parliamentary opposition to challenge the constitutionality of statutes in France.

The UK’s own constitutional reforms of 2005 indicate that government is responding to the need for continued constitutional change, especially a more transparent separation of powers between the three branches; Yet, whilst Parliament exercises less leverage over judicial decisions, the UKSC has not been granted to review legislative proposals in neither an ex-ante nor an abstract ex-post fashion.

Hence, an important argument in favour of implementing a system of ex-ante legislative review is the provision of a metaphorical ‘health-check’ before proposals can ‘harm’ the public. This would simultaneously also bestow greater credibility to the legislation, possibly leading to a more expedient passage though both Houses.

Whilst avoiding the ex-post infringement of HRA rights by narrowing the pertinence of statutes, this could also help to reduce the caseload of the UK appellate courts, by advocating ‘alternative perspectives and points of criticism’ during the legislative process – a greater number of constitutional rights cases divert the UKSC’s attention from its other primary functions and also heightens costs for taxpayers.

‘Organstreit’ mediatory position:

In continental Europe, it is the responsibility of many CCs to determine the separation of powers between the three branches of government in a mediatory capacity. Currently, the FCC in Germany operates a system of ‘Organstreit’ that transforms ex-ante review into an additional tool of checks and balances in order to invalidate ultra vires proceedings – this process attempts to resolve the disputes about the rights and duties of higher federal organs; possible parties include government and officials, as well as the President, political parties and MPs .
A striking example of the extent of the FCC’s jurisdiction in this regard was the response to the conflict over the 1982 parliamentary vote of no confidence. The FCC used a very permissive approach to reinforce the parliamentary minority’s unconstitutionality claim; by second-guessing the political attitudes of the executive, it was able to add a new, substantial and unwritten criterion to the highly political procedure in which three constitutional organs must consent to the dissolution of parliament for it to be deemed constitutionally valid. More recent seizures of the court have encompassed conflicts of scope between National and European bodies.

The UKSC reforms don’t need to go so far as to second-guess parliamentary intention, however, there persists a strong argument that the UKSC should adopt an ex-ante system, in which ‘privileged individuals’, such as the parliamentary opposition and the House of Lords, can seize the court to petition executive action. For instance, instead of the concrete review procedure in the 2017 Miller case that was brought on the grounds of rights infringement, the UKSC should have been consulted by Parliament directly over the need for parliamentary approval of Article 50.

3) A recommendation of transferral of EU constitutional court powers to UKSC

Strike-Down Powers:

European CCs almost always have the competence to invalid statutory law if they feel if goes against the grain of the constitution, and therefore to shield civil rights from the exercise of parliamentary tyranny. Many courts can even go so far as to reform major constitutional predicaments without parliamentary approval – in January 2017, the ‘Italicum’ ruling of the Corte Constituzionale went so far as to effectively change the electoral system from a majoritarian system to a proportional one.

In the UK, the doctrine of parliamentary sovereignty does not support parliamentary abuse of power, yet doesn’t grant any organ enough power to halt encroachment of civil rights – both s.4 HRA and the JR procedure only provide the appellate courts with very limited retributionary powers. If domestic legislation is found to breach the HRA, the UKSC can issue a declaration of incompatibility. Although s.4 cannot declare the incompatible legislation ‘unlawful’, this high-profile and very rare pronouncement usually leads to legislative amendments by Parliament.

Notably, ever since the Solange I judgement in 1974, the German FCC has also shown unreserved defiance to EU legislative supremacy by exercising review as a means of maintaining its constitutional focus on human rights: the Brunner case set an ex-ante control standard for the integrative process with absolute limits, whilst the CC has placed restrictions on the common policy agenda, thus, also limiting future proposals.

As a point of principle, Lord Reid explained in HS2, that the impact of EU law depends on the norms of the UK legal system – if the law in question should enjoy a particular level of constitutional fundamental as in Germany, the UKSC would not be bound by the sovereignty of EU law to the same extent. Only a small number of explicit human rights and liberties are found in the French Code Napoleon preamble, instead affording greater degree of creativity to CC judges to establish higher law precedent as a means of overcoming EU primacy.

The effects of this modus operandi are also starting to be witnessed in UKSC jurisprudence following the ‘creative interpretation’ of Thoburn and HS2, ensuring effect is given to enshrined human rights. According to Ekins, the enforcement of these principles by the UKSC is indicative of a departure from its traditional role as the highest ordinary court, to that of a constitutional norm protector, reflective of the CC definition.

The former Lord Chancellor, Michael Gove, supports this approach of ex-ante review as this would expand legislative bounders and at the same time preserve the principle of parliamentary sovereignty.

In addition, there has been considerable support for a British Bill of Rights to defend UK civil rights broader European paradigms, evidenced by the 2013 Judicial Review and Transforming Legal Aid Proposals which highlight the profound and constitutionally significant inability of individuals, charities and NGOs to defend their rights in the UK court system. Chief Justice, Lord Neuberger, commented on this lack of access to rights in HS2: “It is no good granting people rights if they cannot (…) get effective enforcement procedures in respect of any judgement based on those rights”.

4) Summary

If the UK decides to adopt certain aspects of CCs in continental Europe, there are key constitutional aspects that pose a conflict of interest and would be very difficult to reconcile; to name just two:

Firstly, any proposal for ‘higher’ constitutional law will inevitably raise questions about the relationship between UK law and the sovereignty of the UK Parliament; It is no coincidence that most CCs are situated in civil law jurisdictions where constitutional legislation is explicitly distinguished from ordinary legislation – in Germany, the fundamental constitutional principles are clearly defined in Art 1, 20 and 79 of the Grundgesetz, a code dedicated to constitutional issues.

Secondly, any proposals to replace the HRA with a UK Bill of Rights would raise fundamental questions about the relationship between UK and EU law and consequently the relationship between EU primacy and the domestic doctrine of legislative supremacy.

Would it be easier to just establish a UKCC in addition to the UKSC, like in Germany and France, in order to divide the work load and establish an independent body to only address constitutional issues?

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