On the question of legal sovereignty why didn’t we follow Germany’s example?by Laurence Brown / August 24, 2016 / Leave a comment
As a lecturer in Further Education I am always looking for trips that might pique the interest of blasé students. So when a colleague suggested a tour of the Supreme Court I decided to follow up the idea. Many associate the name with the USA, but since 2009 the UK Supreme Court has replaced the Appellate Committee of the House of Lords as our highest court. (The relevant legislation was the Constitutional Reform Act 2005, introduced under Tony Blair by his Lord Chancellor, and Secretary of State for Constitutional Affairs, Lord Falconer, probably the last Lord Chancellor to be appointed for his legal acumen; a subject I’ll return to later.)
I said our highest court, but of course in those fields where European Law supervenes—such as employment law and consumer rights—it cedes precedence to the Court of Justice of the European Communities in Luxembourg. And this is one area where I—a convinced Remainer—feel a slight pull towards the opposing camp with a blimpish feeling that maybe our Supreme Court—with its expert, highly trained judges and sophisticated common law jurisprudence, different in timbre from the Roman law systems which dominate continental Europe—should really be supreme.
After the fatal vote on 23rd June, a little voice in my head kept repeating that it had once heard that the German equivalent of our Supreme Court had decided to challenge the supremacy of the European Court, while remaining firmly within the EU. Was that really true and if so why couldn’t we do the same?
A little research reveals that the position is something like this. The Federal Republic of Germany has a pretty complicated legal system with five different supreme courts, but above all of them floats the Federal Constitutional Court (FCC, the “Bundesverfassungsgericht”). Back in 1974—less than two years after Edward Heath had triumphantly signed the Accession Treaty taking us into the European Economic Community—the FCC made a decision known as Solange One (solange meaning “so long as” or “provided that”). This stated that, of course, in accordance with previous cases in other Community countries, European law would normally prevail over German national law, but only so long as it did not contravene certain key principles embodied in the German Basic law. As there was nothing in European law at that time which did so, this principle did not need to be applied—but it was clearly stated as a rule of German constitutional law which the FCC could, and would, apply at any time in the future if necessary.
Then, in 1986, came Solange Two, in which the FCC stepped back somewhat from its previous statements, while still preserving the principle that it could (if pushed) declare a particular European law invalid in Germany if it contravened basic constitutional rights. But it is in the case of Brunner v the EU Treaty in 1993 that Germany’s Constitutional Court set out its position most comprehensively. Here, in a challenge to that very Maastricht Treaty in which John Major negotiated certain British opt-outs (showing a flair for negotiation far more skilful that David Cameron would later rely upon), Germany’s top court clarified its position and, apparently, broadened it by setting out the four legal principles in relation to which the Court could, and might, declare European legislation subordinate to the Basic German Law.
Put briefly, they are: democratic underpinning of the relevant law; the existence of a “demos” or people (a philosophical argument clearly outside the remit of any Common Law judge!); the basic rights which are guaranteed by the German Constitution; and the rule of certainty and clarity in the law in relation to the devolution of “competencies” (an over-used term perhaps in European law) between national parliaments and the European institutions.
The first, second and fourth of these arguments sound more political than legal, in our terms; though the third—guaranteeing essential civil and human rights as founded in national law—could surely be applied by our own courts.
We should acknowledge that Germany has a Grundgesetz (a Basic Law) while the UK doesn’t even have a (written) constitution, and also that, understandably and very wisely, that Grundgesetz was specifically designed to avoid a historical repetition of the evils of fascism. And it’s also true that, so far (“solange”), the FCC has never actually struck down any European laws.
Even so, isn’t it striking that Germany’s highest court isn’t embarrassed to rule, repeatedly, that it clearly has the power—and in certain circumstances presumably the duty—to do so, in order to protect Germany’s democratic and civil rights? And though they have continually asserted this power, the sky has not fallen in, and Germany has not been thrown out of the EU. On the contrary it remains one of the key players, if not the key player.
Whatever the reasons, it’s quite clear that in comparison our system has been rather supine whilst its German equivalent has been, at least theoretically, quite assertive. And so this suggests the question: why, when our Constitutional Reform Act was being drafted in 2005, or since then, for instance, in response to the demands of certain Eurosceptics before they declared themselves in the run-up to the referendum (Boris Johnson for example) that a statute be passed declaring that our Parliament retains its sovereignty, could not an amendment to the 2005 Act have been proposed making it clear that the UK Supreme Court reserves the right to declare that European law can be struck down if it contravenes the fundamental democratic and civil rights of UK citizens? What exactly this amounted to could have been left in respectable obscurity as it seems to have been in Germany. But it might have satisfied some Eurosceptics and could hardly have met objections from Angela Merkel as it would mirror the position in her legal system.
The senior minister of the Crown most appropriate to take charge of this reform—which could still be accomplished—would of course be the Lord Chancellor and Secretary of State for Justice.
However, the other major reform introduced by the 2005 Act was headlined in that Act in typically frosty legalese, as “arrangements to modify the office of Lord Chancellor.” That’s a euphemism if ever I saw one. This part of the Act begins with the immortal words: “A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.” Taking for granted that “he” includes “she,” this raises the frightening spectre of a PM, not so constrained, seriously considering appointing as Lord Chancellor his/her electrician, hairstylist or the No 10 cat perhaps?
In fact our new PM has appointed someone who has six years’ experience in the Commons and over two years in the cabinet (as Secretary of State for the Environment.) She is Elizabeth Truss, who is no doubt a formidable politician. And I am delighted that Theresa May has broken another glass ceiling by appointing the first woman Lord Chancellor. But is it old-fashioned to suggest that an experienced lawyer is better qualified to preside over our legal system—and advise on constitutional matters—than even the most highly competent statesperson? As lawyers Lord Falconer, and indeed Kenneth Clarke, were Lord Chancellors of substance and there are certainly highly qualified and very experienced female lawyers (Tory and otherwise) who would appropriately fill the role. Lord Falconer has already made some similar criticisms—though would it be churlish to point out that he sponsored the relevant Act through Parliament? One can only hope that Truss’s experience as deputy director of Reform—which states that one of its six categories of research is “criminal justice reform”—plus no doubt a huge capacity to learn quickly in the job, will equip her for this weighty role.
Whatever “Brexit” means is yet to be determined, but the narrow 52/48 per cent vote—and the facts that Scotland, Northern Ireland and the London region all clearly voted to “Remain”—means that the answer must be some intelligent compromise, one element of which could be a significant change to the position and powers of the UK Supreme Court. Is it too much to expect that our politicians—and leading lawyers—can, given time, craft an intelligent response which finesses both the (narrow) majority of the “Leave vote” and the self-evident economic and cultural need of the UK to stay “within Europe” if it is to remain prosperous, open and united?
And, by the way, I can heartily recommend the guided tour of the Supreme Court in its splendid home opposite the Houses of Parliament. It makes for a fascinating half-day out—for tourists and teachers, if not necessarily for students.