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Does the British Constitution need statutory protection from the excesses of the CJEU?

Professor Derrick Wyatt QC, Brick Court Chambers


For me, discussing the Court of Justice has always involved a paradox.
One the one hand, it has injected the rule of law into every aspect of the EU’s activities.
On the other, some of its decisions undermine the rule of law because they have no legal basis, and amount to judicial legislation. I shall not dwell on this latter point. I developed it at some length in a lecture in November arguing that the Court of Justice needed a new judicial approach for the 21st Century http://www.biicl.org/event/1124
 I rest on the evidence therein.
For the avoidance of doubt, the cumulative effects of the Court’s judicial failings will not lead me to vote to leave the EU. But I do think that judicial default by the Court has undermined confidence in the EU in the UK, and has encouraged some opinion formers to argue for Brexit.
So, the Court of Justice is the guardian of the rule of law, but who is to guard that guardian?
In his Chatham House speech of 10 November last, the Prime Minister floated the possibility that the UK might adopt constitutional safeguards similar to those which exist in Germany and other EU countries. Two  situations were identified where safeguards might apply. In one there is a threat to a fundamental freedom in the national constitution. In the other a judgment of the Court of Justice exceeds the powers conferred upon it. The Prime Minister concluded:
“We will consider how this could be done in the UK.”
Behind this statement of the Prime Minister lie several stories. The first is a political story. It is that Boris Johnson wanted a legal guarantee of British sovereignty before he would campaign to remain in the EU. That story is now over. The political impetus behind the Prime Minister’s initial suggestion has gone.
The second story is a legal one. It is about the German Constitutional Court. The possible model for the change in UK practice indicated by the Prime Minister. It is true that the German Constitutional Court has said repeatedly that it is entitled to uphold the German Constitution against EU law. But it is also true that the German Constitutional Court has never refused to apply EU law. It uses the German Constitution as a pressure point between German law and EU law. This is designed to show the European Court that its approach to this issue or that issue is so strongly contested that a political crisis might result. But the German Court has avoided political crisis so far.
On occasion the German Constitutional Court might indicate that there is a high risk that a rule of EU law would be inapplicable in Germany. But it avoids deciding the point. Or it interprets the EU law in a way which is consistent with the German Constitution.  And it declines to make a reference to the Court of Justice. But the Constitutional Court has not yet gone so far as to refuse to apply EU law. Not yet.
That is the model for the UK suggested by the Prime Minister in his Chatham House Speech. It is a model in which there is more barking than biting. And it is model which reserves the legal right of national judicial defiance.
The third story behind the Chatham House plan is also a legal one. This story reveals that the UK Constitutional model already functions in much as the same way (for present purposes) as the German Constitutional model. How so?
The UK Supreme Court has flagged up possible exceptions to the supremacy and direct effect of EU law in the UK. These exceptions are implied into sections 2 and 3 of the European Communities Act. The first possible exception would cover EU rules and judgments which infringe fundamental principles of the British Constitution. This was flagged up in the HS2 Case. In the event, the Supreme Court interprets EU law so as to avoid conflict with Article 9 of the Bill of Rights 1689, and declines to make a reference to the Court of Justice. I see a striking parallel between the Supreme Court’s technique in this case, and that of the German Constitutional Court in its judgment of 26 January 2016, in which it found a European Arrest Warrant unenforceable in Germany. It found the warrant contrary to the German Constitution, but also contrary to EU law. It did not find it necessary to make a reference.
But back to the exceptions to the direct effect and supremacy of EU law identified by the UK Supreme Court. The second possible exception was flagged up in the Pham case last year. This would cover judgments of the Court of Justice which clearly exceed the Court’s competence under the EU Treaties. Such judgments would not be covered by the European Communities Act, and would not be applied in the UK.
The Supreme Court acknowledged that the Court of Justice has final authority as a matter of EU law.
But the effect in UK law of a judgment of the Court of Justice is a matter for UK law.
The language of the Supreme Court is respectful and diplomatic. It refers to mutual respect and caution on all sides. But it also refers to the dilemma faced by any national court when faced with a European Court judgment. which - I am going to quote:
“ …  oversteps the jurisdictional limits which Member States have clearly set at the European Treaty level and which are reflected domestically in their constitutional arrangements.”
The Supreme Court finds it unnecessary to apply EU law to decide the case before it. But its judgment includes a seven and a half page demolition of the Court of Justice’s judgment in the Rottman case, and issues a thinly veiled warning that that judgment might not be applicable in the UK. For those unfamiliar with Rottman, I digress briefly on the subject of the Court’s case law on Union Citizenship.
The Court has worked hard to expand and develop the concept of EU Citizenship. It has branded EU Citizenship as a status “destined to be the fundamental status of nationals of member States” (first expressed in Grzelczyk).  This is based on judicial policy rather than any relevant text. It is supported by no reasoning. It makes an implicit contrast with national citizenship - if EU Citizenship is destined to be the fundamental status of the nationals of the Member States, then national citizenship is destined to be something less. This implication is confirmed by later case law.
The Court has deduced from this allegedly fundamental status the proposition that the acquisition and loss of national citizenship is subject to review in light of EU law. The Court announces this in the Rottman case. There is no textual basis in the Treaties for this, and it subjects the very existence of national citizenship to EU law.
The Court’s conclusion is in my view inconsistent with the Treaty requirement that EU Citizenship shall not replace national citizenship. If the EU law concept of Citizenship over-rides conditions on the acquisition and loss of national citizenship imposed by national law, then to that extent EU Citizenship replaces national citizenship. The Court’s conclusion in Rottman is also inconsistent with the treaty requirement that the Union respect the national identities of the Member States, and respect their essential state functions. There is no more essential a state function than determining the conditions for acquisition and loss of national citizenship.
It follows that I agree with the Supreme Court in Pham as regards the Rottman judgment. I note that the Supreme Court also accepted the possibility that the ECHR and English law would produce the same result as that contended for under EU law. And it concluded that the EU law point need not be addressed.
Why did the Supreme Court spend seven and a half pages demolishing Rottman and then conclude that the EU law point need not be addressed? Because that extended criticism was a letter addressed to Luxembourg. The Court of Justice is briefed by its research services on the way national supreme courts deal with EU law matters. The Supreme Court was telling the Court of Justice that it is very concerned indeed about the legal basis for Rottman.
I have already said I agree with the Supreme Court about Rottman. I also agree with the Supreme Court in HS2 and Pham as regards their interpretation of sections 2 and 3 of the European Communities Act.
It is true that the European Communities Act instructs UK courts to give effect to EU law in accordance with the judgments of the Court of Justice. But it surely does so on the basis that the Court of Justice will undertake its judicial task in accordance with the wording of the treaties, and in accordance with the standards of legal certainty and predictability which the rule of law requires.
The Rottman judgment fails that test.
It follows that the Rottman judgment is not applicable in the UK, unless the UK Parliament agrees specifically to extend the law of Union Citizenship in the way indicated by the Court of Justice. I say extend the law, because that is what the Court of Justice is purporting to do. It is purporting to extend EU competence, and diminish national competence to the same degree.
I am aware that at the end of the day a failure by the UK to apply EU law will lead to infraction proceedings. The Supreme Court knows that as well as anybody. So why do I countenance, and indeed encourage, at any rate in highly exceptional circumstances, national judicial defiance?
The reason is this. National judicial defiance, based on the rule of law, is the means by which the national constitutional orders address the problem of judicial failure in Luxembourg.
The theory that the Kompetenz-Kompetenz of the Court of Justice must be completely assimilated into the national legal orders is unsustainable in practice. It depends upon a hypothesis of judicial infallibility which the Court  of Justice itself refutes with disconcerting regularity.
The politics behind the Prime Minister’s call for a “German solution” on 10 November might have gone away, but the underlying problem remains. That problem is judicial failure in Luxembourg. And the Supreme Court has indicated the part which UK courts can play in seeking to address that problem.
I say this because any mitigation of the underlying problem will include a constructive and even abrasive dialogue between national courts and the Court of Justice. That abrasive dialogue might at times spill over into national judicial defiance. We should not be shocked by this. National judicial defiance to safeguard the rule of law is not something to be ashamed of.
The framework for this abrasive dialogue is the interface between the national constitutions and the EU legal order. These boundaries are natural pressure points for exposing and seeking to reconcile conflicts between national conceptions of constitutional integrity, and the Court’s conception of its own judicial mission.
Core values of the EU legal order claim to protect the integrity of the national legal orders. In particular, the duty of the EU to respect national identities and essential state functions. If I were a judge of a national supreme court or a national constitutional court, I would find it difficult to accept that the European Court of Justice had exclusive jurisdiction to decide all questions relating to the interpretation and application of these principles. I would expect the Court of Justice to take account of the views of national courts, under the duty of sincere cooperation, and even to defer to national courts on certain matters, under the principle of subsidiarity.
Would further UK legislation facilitate or improve this process? By “this process” I mean the process which I have described as constructive and even abrasive or defiant dialogue. I remind my patient listeners that I have already suggested that the Supreme Court is engaged in this process. I add that it is handling this process with consummate skill.
I make the obvious point. If a statute contained provisions which were bound to restrict the application of EU law, this would attract infraction proceedings. That is not what I have in mind. I am sure that was not what the Prime Minister had in mind.
I am referring to UK legislation which would be compatible with EU law. The starting point would be this:
 There are limits on the reception of EU law into the UK legal order which are intrinsic to our system of parliamentary sovereignty, and to the idiosyncrasies of our constitution.
That is how I would describe the limits referred to by the Supreme Court in HS2 and Pham - they are intrinsic limits. The UK courts will always apply the European Communities Act, or any successor legislation, consistently with the rule of law. The UK courts will not read such legislation as amounting to a completely blank cheque to the EU institutions and Court to unilaterally extend their own jurisdiction.
For a UK statute to endorse the direct effect and supremacy of EU law in accordance with the rule of law, the fundamental principles of the UK Constitution, and the principles of conferral, subsidiarity, and respect for national identities, would not infringe EU law.
Nor would it add anything to what I think the UK courts will do in any event. Except perhaps that it might embolden lower UK courts to question ECJ judgments. That might be a headache for government. It is one thing for a government to pick a political fight, it is another thing to have any court at any level in the judicial hierarchy lining up infraction proceedings for you.
On the other hand, a government might wish to endorse the Supreme Court’s reading of the European Communities Act, and to say that EU law only applies in the UK if it respects the fundamental principles of the UK constitution and if the Court of Justice complies with the rule of law.
I do not assume that that is what a government would want to do. It would usually suit government for national courts to simply get on and apply EU law. If abrasive dialogue ends up as judicial defiance, it is the government which will face the infraction proceedings. The government might then find itself promoting a remedial act to give effect to a judgment which the UK courts have refused to apply because contrary to the rule of law!
If a government did promote legislation, it might want to ensure that only superior courts undertake the assessments referred to by the Supreme Court in HS2 and Pham. Responsibility for such assessments might be confined to the Court of Appeal and the Supreme Court, or even to the Supreme Court alone.
I think I have to wind up with this conclusion.
Legislation is not essential. The Supreme Court has matters well in hand. But legislation could clarify the constitutional position, and clarity and certainty are key features of the rule of law.











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