No full-text available
To read the full-text of this research,
you can request a copy directly from the author.
New development: The courts and multi-level governance—some comparative perspectives on the emerging jurisprudence of the UK Supreme Court
Abstract
In federal systems the courts are accorded the important role of policing the boundaries of the constitutionally specified powers given to the legislature and the executive. The devolution statutes enacted by the UK parliament have created a semi-federal system, in which the courts increasingly have been called upon to adjudicate on whether sub-national legislative bodies have acted ultra vires. Following a comparative overview of the theory and practice of court adjudication in overseas systems of multi-level governance, the leading cases of the British Supreme Court and the House of Lords are considered. It is proposed that Britain—almost by default—has become a semi-federal court somewhat akin to the US Supreme Court and the German Bundesverfassungsgericht.
... Some might think that the courts are too elitist to put up with the current stream of populist politics in the world. Ultimately, the courts need to find acceptance in the population, they 74 Limbach (1999: 165 Qvortrup (2015). need to be accessible, explain what they are doing and it needs to be made clear that they are acting in the people's interest. ...
The outgoing tide of EU law will be Britain’s most significant constitutional change in recent times. In an era of uncertainties, the UK Supreme Court proved to be a guardian of the constitutional role of Parliament. The case of Miller, decided in the UK Supreme Court in 2017, proved that point. The highest court in the UK has therefore gained an important place in the global community of Constitutional Courts. This global community finds its legitimacy in the recognition of common values as well as the recognition of national variations. This article analyses to which extent common values, and in particular those found in German law, have influenced decisions in the House of Lords and UK Supreme Court. To do so, the author analyses decisions by the House of Lords and the Supreme Court and extrajudicial speeches by the Justices of the Supreme Court for references to German constitutional law. It identifies and maps the themes that have attracted the attention of the justices of the Supreme Court. More recently, the UK Supreme Court has referred to judgments and extrajudicial writing by German Constitutional Court judges. This was in the context of constitutional questions relating to the tension between membership within the EU and national identity, a theme which has occupied German judges for some time. As well as that, the interpretation of the European Convention on Human Rights has sparked an interest in German jurisprudence, in particular in the principle of proportionality.
The machinery of UK governance, including many aspects of the legal system, has undergone a lot of important changes in the last decade or so. Some of these changes have been driven by ‘New Public Management’ ideas about the need to increase ‘efficiency, effectiveness and economy’, to sharpen public accountability and to improve the quality of customer service in the administration of justice - as has been happening with other parts of the public service sector. Some important reforms (notably devolution of functions to elected administrations in Scotland, Wales and Northern Ireland and the passing of the Human Rights Act 1998) have been parts of a wider political agenda of modernising Britain’s antiquated ‘unwritten’ constitution. Some of the most senior judges themselves, a category of office holder once regarded as doctrinally opposed to any kind of radical change, have become articulate champions of reform and have carved out new, high profile managerial roles for themselves, as well as becoming markedly more ‘activist’ in the public law and human rights arena when sitting on the Bench.
This paper focuses upon a comparison of the experiences of regionalisation in Spain and the United Kingdom. Spain's process of devolution, initiated in the late 1980s, has led to an asymmetrical structure of devolution with certain regions, such as Catalonia and the Basque Country, acquiring more autonomy than others. However, the slogan 'café para todos ' (coffee for everyone) has in recent years been employed by Catalan and other nationalists to argue that the State of Autonomies has not respected the special status of Spain's historic communities and has diluted their claims for greater levels of self-government. It is precisely such a model of asymmetrical autonomy that has been adopted in the United Kingdom since 1997, the implications of which remain to be seen. As this paper explores, however, there are already signs emerging that the United Kingdom is following a similar trajectory to that in Spain, which is why the comparisons are particularly important and timely. Indeed, the authors argue that adopting a model of asymmetrical autonomy can lead, even at an early stage, to the emergence of regional identities in regions with no previous manifestations of regional consciousness, the rise in territorial tension after devolution, and the backlash by the historic regions against a 'one size fits all' or uniform approach towards devolution.
A year after the publication of Dicey's LAW OF THE CONSTITUTION, William Gladstone was reading it aloud in the House of Commons, citing it as authority. It remains, to this day, a starting point for the study of the English Constitution and comparative constitutional law. THE LAW OF THE CONSTITUTION elucidates the guiding principles of the modern constitution of England: the legislative sovereignty of Parliament, the rule of law, and the binding force of unwritten conventions. Dicey's goal was "to provide students with a manual which may impress these leading principles on their minds, and thus may enable them to study with benefit in Blackstone's Commentaries and other treatises of the like nature those legal topics which, taken together, make up the constitutional law of England."
The inter-relation between government policies, public opinion and court decisions are the subject of intense discussion in academic literature. Constitutional theorists maintain that courts are required to defend individual rights, especially minority rights. Courts are also expected to refrain from excessive interference in decision-making processes conducted by the other two branches of government. Both these themes are derived from the assumption that courts, unlike the legislature and the executive branch, are not representative institutions. They are not required to reflect the preferences of the majority in their decisions. Rather, the reverse is expected: to confront decisions which endanger the rights of minorities. The “success” of courts in maintaining their institutional autonomy — according to this view — is evaluated by their ability to withstand political pressures and effect their counter-majoritarian role.
Political scientists, on the other hand, are concerned with the extent to which courts in fact fulfill this counter-majoritarian role. Some argue that the counter-majoritarian function of the court is no more than a doctrinal aspiration, perhaps even a myth. Constitutional courts, they argue, serve more to legitimize socio-political reforms and broader cultural propensities which were previously endorsed by the political establishment and public opinion, than to confront majoritarian decisions. Others maintain that, while courts are not wholly insulated from public opinion, they still manage, on many occasions, to retain their institutional autonomy vis-à-vis political pressures.
The use of referendums around the world has grown remarkably in the past thirty years and, in particular, referendums are today deployed more than ever in the settlement of constitutional questions, even in countries with little or no tradition of direct democracy. This book addresses the implications of this development for constitutional democracy in a globalizing age, when many of the older certainties surrounding sovereignty and constitutional authority are coming under scrutiny. The book identifies four substantive constitutional processes where the referendum is regularly used today: the founding of new states; the creation or amendment of constitutions; the establishment of complex new models of sub-state autonomy, particularly in multinational states; and the transfer of sovereign powers from European states to the European Union. The book, as a study in constitutional theory, addresses the challenges this phenomenon poses not only for particular constitutional orders, which are typically structured around a representative model of democracy, but for constitutional theory more broadly. The main theoretical focus of the book is the relationship between the referendum and democracy. It addresses the standard criticisms which the referendum is subjected to by democratic theorists and deploys both civic republican theory and the recent turn in deliberative democracy to ask whether by good process-design the constitutional referendum is capable of facilitating the engagement of citizens in deliberative acts of constitution-making.
In the latter part of the 19th century, Walter Bagehot wrote a classic account of the British constitution as it had developed during Queen Victoria's reign. He argued that the late Victorian constitution was not at all what people thought it was. In this book, the author argues that the same is true at the beginning of this century. Most people are aware that a series of major constitutional changes has taken place, but few recognize that their cumulative effect has been to change entirely the nature of Britain's constitutional structure. The old constitution has gone. The author insists that the new constitution is a mess, but one that we should probably try to make the best of. This book is neither a reference book nor a textbook. Like Bagehot's classic, it is written with wit and mordant humour - by someone who is a journalist and political commentator as well as a distinguished academic. Highly charged issues that remain to be settled concern the relations between Scotland and England and the future of the House of Lords. A reformed House of Lords, the author fears, could wind up comprising 'a miscellaneous assemblage of party hacks, political careerists, clapped-out retired or defeated MPs, has-beens, never-weres and never-could-possibly-bes'. The book is the product of a lifetime's reflection on British politics and essential reading for anyone interested in how the British system has changed and how it is likely to change in future.
One of the most remarkable political developments of the twentieth century has been the development of constitutional democracy in Europe after World War II. The defeated powers in the western part of the continent adopted new constitutions that embraced notions of individual rights and limited government. It is difficult to overstate how fundamental these changes have been in transforming preexisting legal systems and cultures and indeed, in transcending historical political divisions. The most important transformation in these new constitutions was the introduction of constitutional courts with power to review and strike down legislation, and also to adjudicate conflicts among governmental departments. 1 These new courts have grown in activity and importance since their introduction. And, they have spread to other countries throughout Europe with each wave of democratization—to Spain and Portugal in the 1970s and to Eastern Europe with the establishment of postcommunist constitutional regimes after 1989. (noting that the Federal Constitutional Court has jurisdiction to hear public law disputes "between the federation and the states, between different states, or within a state if no other legal recourse is provided"). One should note that this is the first important difference between the European mechanism of constitutional adjudication and the American judicial review of legislation. In the European model, the constitutional court has explicit jurisdiction over the conflicts among branches of the central government (Organstreit in Germany, conflitti di attribuzioni in Italy). See id. at 12 (stating that the Federal Constitutional Court has jurisdiction over Organstreit proceedings, which are "constitutional disputes between the highest 'organs,' or branches" of the German government); Pasquale Pasquino, Lenient Legislation: The Jurisprudence of the Italian Constitutional Court (June 1999) (unpublished manuscript, on file with author) [hereinafter Pasquino, Lenient Legislation] (stating that the Italian Constitutional Court is empowered to pass judgment on "[c]onflicts arising from allocation of powers of the State and those allocated to State and regions, and between regions"). The U.S. Supreme Court has not exercised any equivalent power. The American Court has traditionally been reluctant to intervene in interbranch disputes. See MAURO CAPPELLETTI, THE JUDICIAL PROCESS IN COMPARATIVE PERSPECTIVE 138 (Paul J. Kollmer & Joanne M. Olson eds., 1989) (arguing that the U.S. Supreme Court often avoids cases involving disputes between the political branches). The European constitutional courts are outside the judiciary and play the role of an umpire when there are conflicts among the branches of the government. Pasquale Pasquino, Constitutional Adjudication and Democracy. Comparative Perspectives: USA, France, Italy, 11 RATIO JURIS 38, 48 (1998) [hereinafter Pasquino, Constitutional Adjudication]. It is clear that the constitutional philosophies underlying the two institutional systems are quite different. This topic is worth serious inquiry.
The article seeks to contribute to theoretical analysis of political decentralisation in the UK occasioned by devolution to Scotland, Wales and Northern Ireland in 1998–9. It examines the contribution that can be made by Jim Bulpitt's 1983 book, Territory and Power in the United Kingdom. First, it argues that Bulpitt's critique of conventional wisdoms in the early 1980s remains highly relevant to reflecting on shortcomings in the literature today. Key among these is the lack of a common conceptual language for analysis, and Bulpitt's overarching re-conceptualisation of the field as the study of ‘territorial politics’ would repay renewed reflection. Secondly, the article clarifies Bulpitt's own centre perspective and argues that its application is best understood today as a realist historical institutionalist account of UK territorial politics. In so doing Bulpitt also provides an enduring methodological and interpretative challenge to assumptions of state centralism. Thirdly, the article argues that key methodological/interpretative insights can be adapted from Territory and Power in analysis of UK territorial politics and the advent of devolution. This reinforces the utility of Bulpitt's historical institutionalism to contemporary analysis. Finally, it argues that Territory and Power's concepts and methods, understood in these ways, would bear application in comparative studies of political decentralisation.
Our new constitution
- V Bogdanor
We must go beyond a new constitution
- V Bogdanor
Democracy and Distrust: A Theory of
- J H Ely
The Bill of Rights debate: democracy or juristocracy in Britain
- K D Ewing
- A Gearty
Twinned with Belarus: tories betray Britain's human rights reputation. The Independent
- T Judd
- O Wright
Indestructible union … of indestructible states: the Supreme Court of the United States and secession. Legal History
- P Radan
Verfassungspatriotismus
- D Sternberger
Constitutional justice and constitutional politics in France The British Constitution
- D Baranger
The Federalist Papers (Penguin, London)
- A Hamilton
- J In Madison
The Law and the Constitution
- I Jennings
The pure theory of law and analytical jurisprudence
- H Kelsen
New judicial federalism in perspective
- A G Tarr