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…