Constitutional Law Group February 17, 2014 European Union, Judicial review, UK Parliament, Uncategorized

Alison Young on HS2: Wilkommen zum Constitutional Pluralism

The HS2 case is widely recognised as the first important Constitutional case of the year. Its importance for parliamentary sovereignty and the relationship between EU law and national law appears to turn on four paragraphs: paragraph 79 of Lord Reed’s judgment and paragraphs 206 to 208 of the judgment of Lord Neuberger and Lord Mance. Mark Elliott states that these paragraphs suggest that, not only does the UK have a separate category of ‘constitutional statutes’ but that some constitutional statutes are more constitutional than others. Adam Tomkins comments that the case also demonstrates the dangers that can arise when the Court of Justice of the European Union (CJEU) interprets EU directives in a purposive or teleological manner, perhaps taking these provisions beyond what the Member States, represented by the Council, the European Parliament and the Commission intended. He welcomes the approach of the Supreme Court which questions the interpretation of the CJEU. I want to focus on another question – is HS2 best understood as the UK’s conclusive acceptance of constitutional pluralism? In doing so, I hope to demonstrate how this may alleviate the confusion that may be caused by multi-layers of constitutional statutes, as well as how this may help the UK to respond when it believes that the CJEU may have gone too far.

Constitutional Pluralism

Constitutional pluralism is a much-used term. It can be hard to define, particularly when separating it from the related issue of legal constitutionalism. It can also be hard to separate out when the term is used to describe inter-institutional relationships and when it is used to prescribe how institutions should relate to one another. For the purpose of this brief response, constitutional pluralism is defined as occurring when two or more institutions assert the authority to definitely resolve a particular issue, but where neither institution can effectively ‘make good’ on its assertion of authority.

Applied to the European Union, both the CJEU and national courts assert their claim to be the institution that definitively determines the nature of the relationship between national law and EU law. However, neither can fully make good on this claim. The CJEU does not stand in a hierarchical relationship to the national courts. As such, it cannot, as a matter of law, force the national courts to comply with its judgments. However, national courts are also not completely free of influence from the CJEU. They play a major role in implementing EU law, but have no power to declare EU law to be invalid and, for the highest level of court capable of adjudicating on a particular issue, have an, albeit limited, obligation to refer the case to the CJEU. Whilst the CJEU determines EU law, the national courts determine how this is applied to the facts.

Constitutional pluralism can also be applied to the UK. Whilst Parliament enacts legislation, courts determine the principles by which this legislation will be interpreted. Courts control executive actions, either according to common law principles or statutory provisions, and the legislature can enact measures to override common law principles or to oust the jurisdiction of the courts. Both Parliament and the courts have a role to play in determining how legislation is recognised, and in assessing what is meant by ‘parliamentary sovereignty’ when expressed as a legal principle. Whilst most English courts are courts of inherent jurisdiction, Parliament could still place judicial power on a statutory basis, determining its confines.

HS2 and the EU

It is easy to find references to a potential acceptance of constitutional pluralism in the, probably already seminal paragraphs of Lord Reed and of Lord Neuberger and Lord Mance. All argue that the relationship between EU law and national law is a matter for UK constitutional law, to be determined by the UK courts. This is true for conflicts between EU law and UK statutes and for conflicts between EU law and UK constitutional principles. Lord Reed states that the issue as to whether a Directive should override national law ‘cannot be resolved simply by applying the doctrine developed by the Court of Justice of the supremacy of EU law, since the application of that doctrine in our law itself depends upon the 1972 Act’ [79]. Further, ‘[i]f there is a conflict between a constitutional principle … and EU law, that conflict has to be resolved by our courts as an issue arising under the constitutional law of the United Kingdom.’ [79] For Lord Neuberger and Lord Mance ‘[u]nder the European Communities Act 1972, United Kingdom courts have also acknowledged that European law requires them to treat domestic statutes, whether passed before or after the 1972 Act, as invalid if and to the extent that they cannot be interpreted consistently with European law’ [206]. As regards a potential conflict between EU law and national constitutional principles, ‘[i]t is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation’ [207].

Constitutional pluralism is also illustrated in the way in which all of the members of the Supreme Court interpret the requirements of the Directive. There is recognition of potential problems with its interpretation. This is analysed not just from a perspective of national constitutional principles. The Supreme Court looks at the separation of powers, a constitutional tradition shared by the Member States. EU scholars who advocate constitutional pluralism draw on its ability to encourage judicial dialogue and to act as a mutual check. In particular, national courts can point out when decisions of the CJEU may challenge national constitutional principles – and vice versa – helping to alleviate concerns that arise when the CJEU has been overly teleological or purposive in its interpretation of EU law. Constitutional pluralism at the EU level does not just involve the courts. National courts look to national law – including legislation. Member State governments can contribute third-party interventions to the CJEU.

Constitutional pluralism in the UK

Lord Reed, Lord Neuberger and Lord Mance all refer to constitutional principles. For Lord Reed, article 9 of the Bill of Rights 1689 ‘embodies’ a constitutional principle. If a statutory principle can embody a constitutional principle, then this would appear to suggest that this constitutional principle exists independent of its embodiment. It also raises questions as to whether constitutional principles can also be embodied in the common law. Lord Neuberger and Lord Mance also refer to fundamental principles ‘enshrined’ in the Bill of Rights. In addition, ‘[t]he common law itself also recognises certain principles as fundamental to the rule of law’ [207]. They also refer to ‘constitutional statutes’ and ‘constitutional instruments’, both of which appear to be different from ‘ordinary statutes’ and potentially different from one another.

To delineate between different levels of statutes in this manner adds to the confusion already created by the classification of some statutes as ‘constitutional’. Academic debate continues as to what, if anything, is meant by a ‘constitutional statute’ and recent decisions of the Supreme Court appeared to downplay their importance. Rather than adding to the confusion, it may be better to recognise that the English law recognises constitutional principles which can be embodied in statutes – whether classified as ‘constitutional statutes’ or ‘constitutional instruments’, embodied in the common law, or which can act as background principles used when interpreting the common law, actions of the administration and legislation.

To read the decision in this manner is to recognise another example of constitutional pluralism. Parliament enacts the law. Courts interpret its provisions. Parliament can enact legislation embodying constitutional principles. Courts can embody constitutional principles through developing the common law. Courts may also refer to constitutional principles when interpreting executive acts and legislation. In doing so, both the courts and Parliament can check on the potential excesses of the other in a manner similar to the Member States and the CJEU. This is not to argue anything novel – if anything it is to state the obvious. What needs to change is our analysis of constitutional decisions according to a bifurcation between parliamentary and judicial sovereignty and accept that both may assert sovereignty, but neither really is supreme.

Alison Young is a Fellow and Tutor in law at Hertford College, University of Oxford.

Suggested citation: A. Young, ‘Wilkommen zum Constitutional Pluralism’ U.K. Const. L. Blog (17th February 2014) (available at https://ukconstitutionallaw.org/)

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1

John Lubran on February 17, 2014 at 6:48 pm
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In the Times of the 14th February Lord Neuberger is reported as saying that we don’t have a written constitution and reasserts the myth of Parliaments Supremacy. It’s actually quite scary that the head of the unconstitutional Supreme Court (for reasons relating to its unlawful acquiescence to its own expulsion from the House of Lords) is a party to these misdirection’s. This constant reiteration by judicial elites that seem to be trying to say that we have a constitution, but on the other hand we don’t, is a self evidently wrong assertion. The notion that our constitution is not written must be wrong otherwise how can there be one at all!? What these establishment lovies mean is that we don’t have a codified constitution, but the term codified in this context merely means conveniently indexed for ready referencing. Whether or not our constitution is so ‘codified’ has no bearing on whether or not we have a supreme constitution. We can however easily reference 1215 Magna Carta and more profoundly 1688 Declaration of Rights consequential to the profound ‘Glorious Revolution’ of the same year.

The question of the status of any statue is not at all arcane and the eyebrow raising discussion as to what these descriptions of constitutional statutes and constitutional instruments actually mean is worrying in that there should be absolutely no doubt about it. Law is wholly constitutional, statutes derive from Acts and Bills, they are not Law. Governments and Judges cannot make Law or constitutional instruments. In any conflict between Law and statute, Law must always be supreme, therefore any statute, Bill or Act must be Lawful if it has any legitimacy whatsoever, it must follow that it’s not Parliament that’s supreme but the Law, which derives its supremacy from the Constitution and not Parliament. For the avoidance of doubt, our constitution is formed from three unassailable things, Constitutional Instruments (1215, 1688 etc.) Common Law (as ultimately determined by juries and not judges, which is why juries have been described as ‘little parliamnts’) and the most inferior of those three foundations, Case Law precedent (which can only define and clarify law, not make it and which must follow law, which is wholly constitutional, to be legitimate). It is pertinent to note that the 1689 Bill of Rights (a Constitutional Statute) which is so often held up to represent the more superior consequence of the Glorious Revolution is not at all superior and only derives its constitutional authority from the 1688 Declaration of Rights (a Constitutional Instrument) which is a superior Law and not an inferior statute. This illustrates clearly that no one, not even an elected parliament or a Constitutional Monarch, may change or usurp the Law. Otherwise what would be the point of having a constitution?

We are now entering an unprecedented period of learned enlightenment amongst a growing body of the citizenry of these islands and within other Common Law jurisdictions (Canada, Australia and the USA etc., yes, that’s correct, the USA is a Common Law jurisdiction) who are increasingly unwilling to put up with the false and indeed treasonous assertions of tyrannical elites and unethical lawyers who seeks to empower, and indeed enrich themselves, by creating non secitur arguments within a scotch mist of false legalise.
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Christoph Smets on February 18, 2014 at 8:37 am
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Thank you for this interesting perspective (which, in my opinion, isn’t all that obvious). The imminent question that follows, is: If it is also for the courts to determine, whether a statute embodies a constitutional principle and what its prerequisites are, isn’t it really for the courts to determine the UK constitution? And if so: How can it be justified, to not declare national legislation invalid, if and as far as it goes contrary to such a principle? Is the UK moving from parliamentary souvereignty to a constituional one?

Kind regards,
Christoph Smets
Assistant lecturer, University of Duesseldorf
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John Lubran on February 22, 2014 at 11:39 am
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Thank you Christoph for that helpful contribution.

The courts are not above the constitution and can only determine it precisely as it is written or has been developed by juries as common law (not by judicial case law precedence). Where courts make perverse determinations that clearly repudiate a constitutional absolute it is either an unlearned error, a corrupt judgment or an act of treason, with the later two very often being difficult to separate. Where the supreme court (which is currently unconstitutional itself because it should still be within the Lords) refuses to correct an unconstitutional judgment then that’s when a ‘constitutional crises’ arises for which there are only two possible remedies, the first being a grand jury in a common law court acting without any judicial direction whatsoever or the second affectively being a revolution, which is how we got our constitution in the first place.
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Christoph Smets on February 24, 2014 at 9:20 am
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I expressed myself inartfully. I should have written “the Supreme Court” (which I meant) instead of “the courts”. Then my comment should make better sense.
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Edward Kirton-Darling: Missing: political genius. If found, please return to the British People, care of Palace of Westminster, SW1A. | UK Constitutional Law Association on June 28, 2014 at 7:41 am
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[…] Alison Young’s post on this blog on 17th February 2014 argued that debate over whether judges or Parliament are supreme misses the point. Instead constitutional pluralism is evidenced by courts and Parliament checking each other’s excesses, with both asserting sovereignty in different circumstances, and neither able to finally demonstrate supremacy. The argument suggests that constitutional strength comes from the tension between institutions and their ability to exert restraint on each other. […]
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Alison Young: HRA Howlers: The Conservative Party and Reform of the Human Rights Act 1998 | UK Constitutional Law Association on October 7, 2014 at 1:51 pm
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[…] The German Constitutional Court did rule that, where there is a conflict, the German Basic law prevails. However, the court has made similar statements with regard to directly effective European Union law. But it has never applied the German Basic law over directly effective European Union law. Nor was the German Basic Law applied over the European Convention of Human Rights. Provisions were interpreted in such way as to ensure their compatibility. What is important is how similar statements of the German Constitutional Court prompted reactions from the European Court of Justice. The Court of Justice developed protections of human rights, inter alia, in the light of such statements. This, in turn, led to the conclusions of the German Constitutional Court that it would apply directly effective European Union law, so long as the European Union continued to provide an adequate protection of human rights. The statements of the German Constitutional Court are examples of constitutional dialogue between courts. In a similar manner, the court is sending the message that it could ignore the European Court of Human Rights, but that, normally, it would follow its provisions. One could argue that the UK Supreme Court in Horncastle was sending the same message. In a similar way, we could conclude that HS2 is an example of the UK Supreme Court sending the same message to the European Court of Justice. […]
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I·CONnect – Constitutional and Quasi-Constitutional Statutes on April 24, 2015 at 1:17 am
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[…] judges overstepped their authority? Such questions are being vigorously debated. (For example, see here and here; my own views are set out […]
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Constitutional and Quasi-Constitutional Statutes | adam perry on April 24, 2015 at 6:02 am
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[…] judges overstepped their authority? Such questions are being vigorously debated. (For example, see here andhere; my own views are set out […]