Explainer: Can We Turn The Supreme Court Into A Constitutional Court?

By Adam Wagner, Founder and Chair 10 Feb 2016

The Justice Secretary Michael Gove has been talking up a proposal to turn the UK Supreme Court into the UK Constitutional Court, or as he described it a “constitutional longstop”. This would be part of the plan to repeal the Human Rights Act and replace it with a “British Bill of Rights” (see our explainer).

The idea behind the plan is to enable a British court to make sure that EU laws comply with our constitutional principles. If they don’t the Court might just say so, or even strike the law down

The proposals might sound terribly technical. But thankfully our handy guide is here to help.

What is a constitutional court?

A constitutional court reviews legislation and government decisions to make sure they are in harmony with the constitution. It will usually have the power to invalidate a law (that is, strike it down) or decision that conflicts with the constitution.

A constitution, in turn, is a body of fundamental law that sets out the most important aspects of how a society is governed. This includes the relationship between the people and government, and particularly the human rights that government must respect. It also includes the relationship between different branches of government – the judiciary, the executive and Parliament.

For example, Germany has a constitution and a constitutional court that decides whether laws comply with the constitution.

What does this have to do with the EU Referendum?

Those wanting to leave the EU often complain that EU law (laws passed by the EU Parliament or which form part of EU treaties) having priority over domestic law (laws passed by our Parliament) undermines British sovereignty. They argue that the only way to regain sovereignty and make UK law ‘supreme’ again is to pull out of the EU.

The Prime Minister, who is campaigning to stay in the EU, wants to take the sting out of this argument. Particularly because some Cabinet big beasts have expressed concerns about Britain’s ‘loss of sovereignty,’ and are tempted to join the campaign to leave.

If a Constitutional Court is able to prioritise UK law over EU law, some would say Britain will be able to protect its sovereignty and stay in the EU – the best of both worlds. Hence why the Prime Minister seems so interested in the proposal.

Why does everyone keep talking about Germany?

Bratwurst yesterday

Bratwurst yesterday

Germany is known for beer, bratwurst and balancing the tension between national sovereignty and the supremacy of EU law. Wait, what?

Well. The German example makes it seem like it is possible to prioritise domestic law over EU law, and therefore to remain in the EU and protect national sovereignty. This is because Germany’s Constitutional Court has previously declared that it has two important powers. First, to review EU laws and decisions to ensure they are compatible with the human rights guarantees in Germany’s constitution. Second to ensure that no EU institution is acting outside the powers given to it.

However as Professor Mark Elliot notes, the German model might not be the silver bullet the Prime Minister wants. First, the German Constitutional Court could only review EU legislation when they thought it did not protect human rights robustly enough. In contrast, one of the Prime Minister’s concerns seems to be limiting human rights protection for some people. Second, the German Court’s power of review had little practical impact. As a result the Court ended up restraining its own powers of review!

So would it work?

The UK's unwritten constitution

The UK’s unwritten constitution

There are good reasons to think it wouldn’t. Let’s assume a UK Constitutional court prioritised domestic constitutional law over conflicting EU law, based on  an Act of Parliament that said it should do so. In this case, the domestic constitutional law would be the law of the land. At the same time, EU law would remain supreme over the local law of its member states. This is not power-grab by Eurocrats, it’s a result of states agreeing to this arrangement when they signed up to various EU treaties.

A problem arises. Even if EU law is supreme, how can this be enforced if the law of the land allows domestic constitutional law to take priority over EU law? After all, the European Court of Justice (as Professor Steve Peers rightly pointed out) can neither strike down national law, nor easily boss national courts around.

The answer is that the European Commission (the institution responsible for upholding EU treaties) could sue the UK for not applying EU law. A big deal? It could be. Fines have been as high as £40m for the initial violation, plus hundreds of thousands of euros for every additional day the measure is not implemented.  This is an enforcement mechanism with teeth!

So, what would change? According to Dominic Grieve QC, former Attorney General, and Sir Francis Jacobs, former Advocate-General of the EU, very little.

There is another difficulty. Unlike Germany, Britain has an unwritten constitution (pictured above). This means the British constitution is not contained in one document. So it is unclear precisely which laws amount to constitutional law, and which principles are constitutional principles. This means there is major uncertainty about which cases would be eligible to be heard by the Constitutional Court, in the first place.

Would the proposal at least make the Supreme Court more assertive?

What a more assertive Supreme Court may look like

What a more assertive Supreme Court could look like

It’s too early to say for certain, but the Supreme Court may already have started to behave like the Constitutional Court that is envisioned. In the recent HS2 (high speed rail) case the Supreme Court said that it would step in to protect fundamental parts of the constitution from being curtailed by EU law. It noted that there were some ‘constitutional instruments’ that Parliament could not have intended to curtail by joining the EU. And therefore implied that EU law may not have complete supremacy.

What’s going to happen next?

The details are still quite uncertain. We will have to wait and see exactly what is proposed to better understand the implications (don’t worry, RightsInfo will do so)!

This post is written by Anirudh Mathur, part of the RightsInfo Volunteer Team

About The Author

Adam Wagner Founder and Chair

Adam is the founder and Chair of EachOther. In his day job, he is a barrister specialising in human rights law and is well known for his human rights communications work on social and mainstream media. In 2010, he set up the hugely successful UK Human Rights Blog.

Adam is the founder and Chair of EachOther. In his day job, he is a barrister specialising in human rights law and is well known for his human rights communications work on social and mainstream media. In 2010, he set up the hugely successful UK Human Rights Blog.