The Constitutional and Administrative Justice Initiative (CAJI)

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In October 2022, the Essex Law School launched the Constitutional and Administrative Justice Initiative (CAJI). This builds on and extends the work of the UK Administrative Justice Institute which was established in 2014 with funding from the Nuffield Foundation to kickstart the expansion of empirical research on administrative justice in the UK. Since 2018, the Institute has been funded by Essex Law School to progress the priorities set out in its Research Roadmap.

Establishing CAJI reflects the importance of connecting research and scholarship on administrative justice with Essex Law School’s broader public law scholarship on constitutional justice, judicial review, comparative public law, constitutional theory, social justice and human rights.

CAJI’s core team

Maurice Sunkin KC (Hon), Professor of Public Law and Socio-Legal Studies, is co-director of CAJI and a member of the team that originally established the UK Administrative Justice Institute.

Theodore Konstadinides, Professor of Law, co-director of CAJI.

Lee Marsons, CAJI’s research officer.

CAJI also has an advisory group comprising of colleagues from the Essex Law School as well as other departments of the University of Essex and external participants from academia and NGOs.

The importance of constitutional and administrative justice

Constitutional justice concerns matters critical to the relationship between the citizen and the state, including adherence to the principles of supremacy of law, accountability before the law and fairness in its application. At its core, it concerns state protection of our constitutional rights such as liberty, equal protection under the law and procedural due process. This requires decision-makers to respect their constitutional responsibilities: that the legislature legislates, and the executive governs according to established constitutional principles and that both branches are politically and legally accountable. Hence, constitutional justice is often discussed in the context of constitutionalism meaning that in serving the people the legislature and the executive are themselves governed by fundamental rules rooted in the consent of the people.

A commitment to the rule of law and avoidance of arbitrary exercise of power by the executive and those acting on its behalf are vital components of constitutional justice and good government. The decisions of independent courts demand respect and play a vital role in providing redress to those adversely affected by state action, constraining the unlawful exercise of state powers, and safeguarding fundamental constitutional values.  

The impact of the European Union and the Council of Europe and its advisory bodies such as the Venice Commission have become key in the globalisation of constitutional justice. This development entails the consolidation of constitutional principles common to their signatories and the maintenance of coherent standards of constitutional rights protection.  Recent threats to the independence of the judiciary in several European countries show that we cannot assume that appropriate constitutional standards are easily enforced.

At its core, administrative justice is about ensuring that those delivering public services act justly and make correct decisions and about what can be done when things go wrong. It encompasses matters of everyday importance that affect most of us at some point, such as education, health care housing, immigration, land use planning, social security and taxation.

We are interested in how public services are designed and delivered, how legislation is drafted, how people are consulted about laws and policies, how people can challenge decisions by public bodies, how redress bodies consider those challenges, and how learning from such challenges is used to improve delivery and decision-making in the first place. These matters are of vital importance to society.

Professor Theodore Konstadinides, CAJI co-director and Academic Lead for Public Law, stated:

“The CAJI is a research hub within the Essex Law School that builds on the legacy of the UK Administrative Justice Institute and pays tribute to all the amazing research that colleagues like Andrew Le Sueur and Maurice Sunkin have undertaken in public law and socio-legal studies.

CAJI’s research agenda is ambitious in that it draws on many issues pertaining to the exercise of public authority at all levels with the aim of improving the quality of decision making and access to justice in the UK and at international level.

While it is an active research hub of the Law School, CAJI embraces academics from multiple disciplines and  acts as a forum to discuss how we conduct research where the doctrinal meets the empirical.

CAJI is also interested in how academic research can contribute on the ground by advising public bodies and NGOs about pertinent issues of public life and commenting about complex topics in a way that is accessible to the wider public. Questions related to institutional independence, just government, states’ international obligations, modern living environments, provide exciting opportunities for interdisciplinary research and postgraduate research study. Our work dovetails neatly with the University’s research priorities in social deprivation, sustainability and health and wellbeing.

We therefore invite prospective visiting researchers and PhD students to contact us in order to discuss their ideas and potential opportunities for future collaboration.”

How to find us

CAJI is based in the Essex Law School at Wivenhoe Park.

As part of this change, UKAJI’s website – available here – will be migrated to a dedicated webpage on Essex Law School’s website. All original content will be protected.

UKAJI also has a Twitter account which will be maintained during this process.

Social Rights and the Constitutional Moment: Learning from Chile and International Experiences

In the 1990s, Bruce Ackerman defined ‘constitutional moments’ as historic milestones of intense deliberation and change in a country’s politics, change that reflects in the country’s constitutional settlement.

Since October 2019, Chile is going through its own constitutional moment, a moment that began with popular resistance against rising public transport fees in the capital Santiago.

Social Rights and the Constitutional Moment seizes the opportunity of this unique moment to unpack the context, difficulties, opportunities, and merits to enhance the status of environmental and social rights (health, housing, education, and social security) in a country’s constitution.

Social Rights and the Constitutional Moment (Hart 2022): please see below contents and links to chapter summaries

This edited volume arose from a collaboration between the Global Initiative for Economic, Social and Cultural Rights, the Human Rights Centre of the University of Essex in the UK, and the University of Concepción in Chile.

In 2020-2021, this partnership brought together practitioners and academics from Chile and other countries (Argentina, Brazil, Canada, Colombia, Ireland, Mexico, South Africa, Spain, the United Kingdom and the United States) to share and learn from international and comparative practice with the goal of informing the ongoing process of constitutional reform in Chile.

More than thirty contributions were compiled and submitted to members of the constitutional convention and other public authorities in the country in September 2021. This new book presents an extended version of a selection of those essays.

Still today, with laudable exceptions (such as this, this, this, this and this), the majority of comparative constitutional studies in the English language tend to focus on the United States and Europe, and the analysis of peripheral legal systems, when it exists, can only be found on the sidelines as a more or less blatant afterthought. Unlike common practice in comparative constitutional law, this book is anchored in Latin America, building from Chile.

Drawing on the analysis of both academics and practitioners, the book provides rigorous answers to the fundamental questions raised by the construction of a new constitutional bill of rights that embraces climate and social justice.

With an international and comparative perspective, chapters look at political economy, the judicial enforceability of social rights, implications of the privatisation of public services, and the importance of active participation of most vulnerable groups in a constitutional drafting process.

Ahead of the referendum on a new constitution for Chile in the second half of 2022, this collection is timely and relevant and will have a direct impact on how best to legislate effectively for social rights in Chile and beyond.

Full book citation:

Koldo Casla, Magdalena Sepúlveda, Vicente Silva and Valentina Contreras (eds), Social Rights and the Constitutional Moment Learning from Chile and International Experiences (Hart 2022).

Contents and links to chapter summaries:

Chapter 1. Introduction: Social Rights and the Constitutional Moment by Koldo Casla, Magdalena Sepúlveda, Vicente Silva and Valentina Contreras

Chapter 2. Yesterday’s Accomplices, Beneficiaries of Today: The Knots of Inequality Tied by the Dictatorship by Juan Pablo Bohoslavsky, Karinna Fernández and Sebastián Smart

Chapter 3. An Open Constitution to Reverse Chile’s Neoliberal Trajectory by Francisca Moya and Constanza Salgado

Chapter 4. Advancing Equal Rights in Constitutions: Insights from 193 Countries by Aleta Sprague, Pam Stek, Amy Raub and Jody Heymann

Chapter 5. Socio-Economic Rights in South Africa’s Constitution: Aspirations, Achievements, Disappointments and Lessons by Sandra Liebenberg

Chapter 6. Publicity and the Rule of Law: Access to Public Information in the Political Constitution of Colombia by Vivian Newman

Chapter 7. The Path of the Inter-American Court Towards Direct Justiciability of Economic, Social, Cultural and Environmental Rights: Impact on Domestic Legal Systems by Julieta Rossi

Chapter 8. Constitutional Provisions on Disability Rights: National Approaches and International Context by Gonzalo Moreno, Michael Ashley Stein and Jody Heymann

Chapter 9. Persons with Disabilities in the Chilean Constitution-Making Process by Pablo Marshall, Viviana Ponce De León and Eduardo Marchant

Chapter 10. The Right to Education in Chile: Evolution, Critical Issues and Perspectives of Change by Alfonso Henriquez R

Chapter 11. Integrating the Abidjan Principles on the Right to Education into the Constitution: Keys for the Chilean Process by Valentina Contreras, Vicente Silva and Delphine Dorsi

Chapter 12. Taking the Right to Adequate Housing Seriously in Chile’s Next Constitution: Building from Scratch by Koldo Casla and Verónica Valenzuela

Chapter 13. Health Rights in the New Chilean Constitution by Alejandra Zúñiga-Fajuri

Chapter 14. The Right to Social Security in Chile’s Constitution: Considerations and Opportunities by Alexandra Barrantes

Chapter 15. Environmental Issues in a New Constitution by Verónica Delgado and Dominique Hervé

Why the UK Government’s Plan to Overturn Court Decisions is a Bad Idea

Photo by Jordhan Madec

By Maurice Sunkin, Theodore Konstadinides and Lee Marsons, School of Law, University of Essex

The UK government is pursuing multiple legal reforms designed to rebalance “the relationship between the government, parliament and the courts” – a commitment made in the Conservative party’s 2019 election manifesto. Many of these reforms will affect how people can hold the state accountable, potentially undermining independent scrutiny and weakening the role of the courts in holding the government to account.

Among them is a review of the 1998 Human Rights Act – the law that allows people to enforce certain human rights in British courts – and proposed changes to judicial review – a process by which people can ensure that the government obeys the law.

We were given a further insight into the government’s thinking about how it might continue to “rebalance” its relationship with the judges, with details of the proposals emerging in the press. This includes a possible “interpretation bill”, which would be a yearly act of parliament by which the government would ask MPs to overturn court decisions that the government does not like.

Alongside a growing number of voices, we argue that this is a bad idea. Even if this specific policy is not adopted, these arguments are relevant to any proposal that makes overturning court decisions routine.

Problems with the government proposals

Principally, it is difficult to see what problem this is trying to solve. Parliament is sovereign and can already overturn any court decision, from a small claims case all the way to the UK Supreme Court. This proposal, then, will give parliament zero additional powers beyond those which it already has. At most, it would give parliamentarians a regular block of time to legislate about cases the government dislikes. But it is questionable whether such a regular event is necessary and it could descend into a farcical pantomime of “find judgments to disagree with to justify this exercise”, rather than a serious focus on judgments that raise genuine, principled or pragmatic concerns.

Also, while parliament can already overturn cases, doing so is by no means routine. This proposal would make the irregular regular. It would make the non-routine routine. It would remove the political heat from overturning judicial decisions. Given that the idea is apparently rooted in government frustration with losing important judicial reviews, the proposal would mark a significant indicator of the diminishing status of the rule of law in British democracy.

There are also several important pragmatic concerns. If a carefully reasoned decision of a senior court is to be overturned, this should only be after parliament has fully considered the case and its real-world implications, especially for MPs’ constituents. MPs will need to examine how overturning this case could, for example, make it more difficult for them to challenge an unlawful benefit sanction, a discriminatory stop and search or incorrect decisions about a child with special educational needs. These matters deserve careful attention. It is difficult to see how parliament could perform this assessment on multiple cases at once as part of a general annual exercise.

Parliament should also make a careful assessment of whether, for example, the problem is the whole judgment and all its consequences or only part of the judgment and only the consequences in a few instances at this particular time. On thoughtful reflection, reversing the whole judgment forever could be disproportionate.

Being more reflective about individual cases allows time for consultations, so that the government can consider the views of experts in that area of law, and more importantly, people disadvantaged by overturning the decision. This should include impact assessments to consider the consequences for less powerful, underrepresented groups like the disabled, women and racial and religious minorities.

The consequences of overturning the case for the broader constitutional system must also be examined. Would it, for example, promote or undermine government accountability, fair procedures and government obedience to the law?

It is not good law-making to overturn important judgments as part of a generic package when the consequences for ordinary people could be so great.

Retrospective decisions

Further serious problems would arise if the interpretation bill consistently operated retrospectively. This is when the new interpretation would apply not just to future cases but to all past cases as well. People and public bodies plan their budgets, allocate their resources and make their decisions based on the law as it stands. Abolishing the previous understanding of the law all at once could generate legal uncertainty, undermine confidence in the law and damage people’s expectations about what they were entitled to.

Worse, claimants may not even bother to bring some cases for fear that victories would simply be overturned retrospectively. There would be no reason to waste the time, resources and effort. Government accountability could be undermined if people were dissuaded from bringing cases on this basis. Even the apparent support for these proposals at senior ministerial levels may send a message and create a chilling effect. Again, this is legal. But it is not the right course of action. Convenience for the government is not the same thing as the public interest.

At best, the proposal to allow parliament to routinely overturn judicial decisions would be poor legislative practice unconducive to thoughtful law-making. At worst, it would be a significant nudge of the constitution in the government’s favour and away from independent judicial scrutiny. It could threaten government accountability and the rule of law and damage the status of the UK as a model of liberal democracy.

This article was first published on The Conversation and is reproduced here under a Creative Commons Licence.

Constitutional Pluralism and Loyal Opposition

Image by Udo Pohlmann

Dr. Tom Flynn, Lecturer in Law at the University of Essex, has recently had an article published in the International Journal of Constitutional Law (I•CON) as part of a symposium on last year’s controversial PSPP judgment of the German Federal Constitutional Court (GFCC).

In that judgment, the GFCC for the first time declared a judgment of the Court of Justice of the European Union (CJEU) to be ultra vires. As the symposium in I•CON demonstrates, this decision has come in for sustained attack from many quarters, and defences of it are partial at best.

Most significantly, critics decry the PSPP judgment of the GFCC for giving succour to the authoritarian governments of particular Member States, most notably Hungary and Poland: if Germany can defy the primacy of EU law, then surely every other Member State can too?

In this context, Dr. Flynn analyses PSPP in the light of previous national court decisions (Italian, Danish, Czech, and Hungarian) that challenged the CJEU’s conception of the primacy of EU law, and argues that it cannot, on its own, be used to justify the imposition or adoption of an absolutist conception of the primacy of EU law.

Instead, we can reconceive national court objection to the CJEU’s conception of primacy as a form of ‘loyal opposition’, analogous to the political concept, where mere opposition to the tendencies and policies of the current government must not be regarded as being somehow disloyal or unspeakable.

The theory of constitutional pluralism, which conceptualises the relationship between EU constitutional law and that of the Member States as being heterarchical rather than hierarchical, must therefore not be regarded as being inherently dangerous, or as an expression of some kind of retrograde ‘sovereigntism’.

Rather, we must pay close attention to the reasoning and justification of any given instance of national disapplication of EU law. This is particularly so in the context of a Union that is showing itself increasingly ill-equipped to handle the rise of authoritarianism in the Member States: just as not all expressions of national constitutional primacy are wicked, not all expressions of Union primacy are good.

Dr. Flynn instead proposes a ‘legitimacy test’, whereby we can learn to distinguish principled, reasoned, ‘loyal’ opposition in the EU constitutional space from unprincipled, unreasoned, ‘disloyal’ constitutional backsliding.

The full citation of Dr. Flynn’s new article is: Tom Flynn, Constitutional pluralism and loyal opposition, International Journal of Constitutional Law, Volume 19, Issue 1, January 2021, Pages 241–268,

National Courts and the Enforcement of EU Law: The Pivotal Role of National Courts in the EU Legal Order

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Prof. Theodore Konstadinides, Professor of Law, University of Essex and Dr. Anastasia Karatzia, Lecturer in Law, University of Essex

Prof. Theodore Konstadinides and Dr. Anastasia Karatzia acted as the UK national rapporteurs for the Fédération Internationale Pour Le Droit Européen (FIDE) Congress 2020, one of the most significant conferences on EU law which brings together academics, advocates, judges and representatives from the EU institutions.

The Congress is an occasion to exchange views and expertise on EU law. Prof. Konstadinides and Dr. Karatzia were selected as the national rapporteurs for one of the three topics of the conference: National Courts and the Enforcement of EU Law: The Pivotal Role of National Courts in the EU Legal Order.

In their report, the authors explore pertinent questions about the interaction between UK national courts and the Court of Justice of the European Union concerning issues such as the preliminary reference procedure, the principle of supremacy, presumption of mutual trust, and the judicial independence of national courts and tribunals.

The Congress Publications, which include Prof. Konstadinides’ and Dr. Karatzia’s report, were published in July 2020 and are available digitally as Open Access resource here.

The German Constitutional Court’s Decision on PSPP: Between Mental Gymnastics and Common Sense

The Federal Constitutional Court

Professor Theodore Konstadinides, School of Law, University of Essex

The 5th of May 2020 will be remembered as a strange day for EU law and German constitutionalism. The German Constitutional Court upheld the constitutional complaints by several groups of individuals against the European Central Bank’s Public Sector Purchase Programme (PSPP). As explained in yesterday’s post by Thomas Horsley, the PSPP set up a framework that enabled the ECB to purchase government bonds or other marketable debt securities issued by the governments of Member States in the eurozone with a view to return to an appropriate level of inflation (below 2 per cent). The Constitutional Court found that the PSPP carried considerable impact on the fiscal framework in the Member States and the banking sector in general. As such, the Court concluded that both the German Government and Parliament violated the complainants’ rights under the Constitution by failing to monitor the European Central Bank’s (ECB) mandate, in particular as regards the adoption and implementation of the PSPP.

Most importantly perhaps, the Constitutional Court held that it was not bound by the preliminary ruling of the CJEU (Article 267 TFEU) on the same issue (in Weiss discussed below). Its reasoning was centred on the Luxembourg Court’s alleged failure to properly apply the proportionality principle under the Treaty (Article 5 (1) and (4) TEU). This failure was due to a lack of assessment of the possible economic policy implications of the purchase program of public debt and lack of consideration of the availability of less restrictive means. Consequently, the Constitutional Court held that the CJEU acted ultra vires.

Two immediate reactions to the judgment

The judgment reaches beyond the practical implications of policing the boundaries between monetary and economic policies. Its impact is twofold.

First, on an institutional level, questioning the monetary mandate of the European Central Bank (ECB) as a sui generis institution operating within the EU institutional system may destabilise the high degree of independence enjoyed by the ECB in the financial crisis related cases heard before the CJEU and national courts. As feared by Maduro, the ripple effect of the judgment may therefore reach beyond the credibility of the PSPP. It may further endanger the coming into fruition of similar ECB ventures such as its recent response to Covid-19 through its new Pandemic Emergency Purchase Programme (PEPP). New cases may emerge in Germany against this and future financial assistance decisions questioning the economic side effects of the ECB’s own programmes.

Second, constitutionally the judgment poses questions of an existential nature in the midst of the Covid-19 crisis concerning the balancing between the authority and primacy of EU law, and national competences and sovereignty beyond budget matters. It also questions the current stability of the preliminary reference procedure under Article 267 TFEU as the main communication channel fostering dialogue between the national and EU legal orders. This post will consider the judgment’s constitutional implications by criticising what the judgment means for the limits of the transfer of sovereign powers to the EU, and for judicial dialogue between national courts and the CJEU, but also between the three branches of government in Germany.

Constitutional confrontations prior to the PSPP judgment

While the judgment has attracted a great deal of attention in the blogosphere, little is mentioned of the fact that the PSPP judgment is not the first instance where the German Constitutional Court has challenged the validity of the decisions of the ECB. A few years back the same Court established that its powers of review may extend outside the context of Treaty revision or secondary law implementation qua an act of an EU institution, such as the ECB, that has its own legal personality and decision-making bodies. In the seminal Gauweiler judgment of 2015 (the first ever preliminary reference from the German Constitutional Court to the CJEU) the German Constitutional Court contested the validity of the Decision of the Governing Council of the ECB on features of the ECB’s government bond buying programme (Outright Monetary Transactions – OMT) arguing that it violates EU rules on monetary policy and the Protocol on the Statute of the European System of Central Banks and of the ECB. Its reasoning was purely constructed on legal grounds – i.e. whether the OMT programme marked an important shift in the delimitation of competence to the Member States’ detriment.

In its OMT judgment, the BVerfG placed the ECB’s Decision under the scrutiny of German constitutional law due to the fact that it operated without any express judicial or parliamentary approval. It was in this regard that its constitutional identity review power kicked in as a means to reinstate the default constitutional position that fiscal policy is only to be exercised according to the principles of representation and of distribution of powers. Equally, the Bundestag was responsible for the overall budgetary responsibility. As such, the Constitutional Court’s reasoning was predicated on the condition that the balance of competence would only be restored once the CJEU provided assurances that the OMT Programme merely consists of a supporting mechanism for the EU economic policies and not one concerning the stability of the EMU. Indeed, the CJEU provided such assurances and, despite its reservations, the Constitutional Court nodded to its satisfaction.

Shortly after Gauweiler, the German Constitutional Court made another request for a preliminary ruling in Weiss, this time on the validity of the ECB’s Decision on PSPP and its subsequent amendments as a means to maintain price stability. The applicants in Weiss asked similar questions to Gauweiler in relation to ECB’s monetary mandate and its potential ultra vires acts by venturing into economic policy reserved by the Member States. The CJEU rejected this claim and ruled in 2018 that the PSPP is a proportionate measure for mitigating the risks to the outlook on price developments and that it falls within the ambit of the ECB’s competences. It is worth mentioning that compared to OMT, the CJEU’s judgment in Weiss received little wider publicity, perhaps because one could almost predict another positive nod from the German Constitutional Court.

The constitutional dimension of the PSPP judgment

This brings us to the current judgment of the Constitutional Court of 5 May 2020 vis-a-vis the refusal of the German Constitutional Court to implement the above judgment of the CJEU. This refusal was based on the grounds that the CJEU manifestly failed to give consideration to the principle of proportionality which applies under the Treaty to the division of competences between the EU and national legal orders (Article 5 (1) and (4) TEU). The judgment is reminiscent of the scenario that the Constitutional Court has been rehearsing for years (since its Maastricht decision in 1993) in its collective mind: that when push comes to shove it will be competent to decide whether an act of EU secondary law is ultra vires. It is a scenario that we have been teaching our students with the caveat that this had never materialised in Germany. As mentioned elsewhere, our syllabi might have to be revised for next year, given that the judgment signals the first time that the BVerfG directly diverges from the ruling of the CJEU in a case that it has initiated through the preliminary reference procedure (Article 267 TFEU).

But the PSPP judgment goes beyond a declaration of ultra vires of EU secondary legislation. The Constitutional Court extends its ultra vires review to the interpretation of proportionality undertaken by the CJEU as exceeding its mandate as conferred by the Treaty (Article 19 (1) TEU). It confronts the CJEU as acting ultra vires because its standard of review is not conducive to restricting the scope of competences conferred by the Treaty upon the ECB. The Constitutional Court declares that it is the final arbiter and thus not bound by the CJEU’s judgment in Weiss because it does not agree with its reasoning which it describes as ‘simply not comprehensible’ (see for instance paras 116 and 153). By holding that the Weiss judgment exceeded the mandate conferred upon the CJEU, the Constitutional Court disregards the principle that rulings of the CJEU are binding on all national courts. The Constitutional Court also seems to take no notice of Article 344 TFEU which provides that ‘Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided therein’. It both hinders any future communication between the two courts on the matter and oversteps the boundaries of its powers by acting ultra vires itself.

Yet, despite its bravado, the PSPP decision does not provide any assurances that the BVerfG has finally adopted a unified and coherent approach when it comes to exercising its power to impose constitutional locks upon EU competence. A careful review of the Constitutional Court’s previous record of decisions reveals that its constitutional review has been purely theoretical and consisted of a means of getting assurances from both the EU and domestic institutions that the balance of competence between the EU and the Member States has not been transgressed. We cannot, however, overlook the possibility that in the present case this may be a gamble too far for the credibility of the German Constitutional Court. If the Court, for instance, accepts the Bundesbank’s stronger justification for why the ECB program, and decisions implementing it, are proportional the PSPP judgment may be remembered as some of the most scathing satire to scrape across the Karlsruhe courtroom since the days of Lisbon Urteil. There, the Constitutional Court took it upon itself to scrutinise the exercise of EU competences through an intra vires identity review (even when the EU is acting within its bounds of competence) in order to preserve the inviolable core content of Germany’s constitutional identity.

Throughout Germany’s history of EU membership, the Constitutional Court’s ultra vires competence review has been constructed on a ‘so-long-as’ presumption of equivalence of constitutional standards which were never deemed to be deficient at the EU level by the judges of the Constitutional Court. The current decision, however, is different because the same judges placed an additional caveat on the judicial interpretation of EU law by the CJEU. They boldly declare that:

As long as the CJEU applies recognised methodological principles and the decision it renders is not objectively arbitrary from an objective perspective, the Federal Constitutional Court must respect the decision of the CJEU even when it adopts a view against which weighty arguments could be made (para. 112)

Hence there are two important dimensions of the case where the Constitutional Court interferes with the current EU rulebook. On the one hand, the Constitutional Court appears unequivocal about imposing external controls upon the ECB’s economic assessment, seeking more transparency and proportionality as to its measures. It throws the ball aggressively into the Bundesbank’s court hoping that it will bounce in the right direction and strike at the ECB’s headquarters. There is a silver lining to this dimension of the judgment given the growth of the ECB’s competence in recent years. However, the Court’s economic analysis is hardly so convincing as to make a bulletproof argument.

On the other hand, the PSPP judgment establishes an ultra vires test that is insensitive to the CJEU’s jurisdiction conferred under the Treaty. There is a surprise element here given that the CJEU has been consistent in its last two preliminary rulings about proportionality. Of course, one can argue that the CJEU’s proportionality control over the acts of the ECB has always been based on the wrong footing. But for the above reasons, unlike the Constitutional Court’s previous theoretical Kompetenz-Kompetenz challenges, the current decision seems to allow little scope for putting the reverse gear in place (unless the Court is prepared to accept any proportionality justification). But even if the judgment is about principle and the Court runs with just about any Bundesbank proportionality justification thrown at it, some damage is too severe to handle on its own without causing further harm to Germany’s EU membership.

By disregarding the CJEU’s exclusive powers of treaty interpretation the Constitutional Court endangers Germany’s duty of sincere cooperation (under Article 4(3) TEU) to the EU against the wishes of the other two branches of government. Even if the judgment is about principle, the price is too high to pay as an ultra vires act is not to be applied in Germany. This means effectively that the German Government is put on the spot and asked to choose between its EU membership obligations and its allegiance to the Constitution as interpreted by the Constitutional Court. At the same time, the judgment raises a question about the extent to which the duty of sincere cooperation under EU law applies in the internal tensions of a Member State.

While, therefore, protecting individual rights under the Constitution, the PSPP judgment questions the principle of separation of powers under the German Constitution and the unity between the three branches of government and people to respond to external pressure from the ECB. The judgment is, however, more than an attempt of the German Constitutional Court to revert to a long-standing statement of intention to review EU law and show its real teeth to the EU Institutions. As such we must be careful in attributing it a veneer of constitutional patriotism. By holding that both the German Government and Parliament violated the Constitution, judges turn in effect against all parties involved in the materialisation of the PSPP, albeit them sitting in Frankfurt, Luxembourg or in Berlin. One can hardly interpret as healthy national dialogue the 3-month ultimatum given by the Constitutional Court to the German Government and Parliament to secure a new evaluation of the PSSP from the Governing Council of the ECB that complies with the proportionality test set by the Court as regards its economic and fiscal policy implications. The ECB needs, in particular, to provide authorisation to the Bundesbank to send to the Constitutional Court all relevant documentation both published and unpublished providing the necessary proof that all possible consequences of the purchase program were considered. Failure to do so means that the Deutsche Bundesbank will have to withdraw from the implementation and enforcement of the PSPP.


While EU Institutions are far from being infallible and Member States can and should confront their counterparts in the EU, the current decision sets a dangerous course because it allows no room for internal dialogue to be fostered between the Constitutional Court, the Government, and Parliament so that a uniform national approach can be adopted against ECB policies, whether this means accepting them or challenging them before the CJEU as a Member State. The Constitutional Court’s judgment shall not therefore be only interpreted as an act of defiance against the EU but also as a decision that jeopardises the Constitutional Court’s own reputation (which, as explained yesterday, has been envied by last instance courts across Europe) and, depending on the EU’s reaction, Germany’s good record of membership in the EU.

The ECB’s and CJEU’s responses to the judgment, as well as the Commission’s issuing of a Press Release warning of the possibility of bringing infringement proceedings against Germany (if  the Bundesbank fails to implement its obligations under the Eurosystem) are proof that the judgment is more than a storm in a teacup and that the current mutiny in Karlsruhe may have to be resolved by using formal EU dispute resolution mechanisms. Any fears that the PSPP judgment is emblematic of the wider rule of law crisis (in the form of defiance towards EU membership obligations) that has been brewing for the last half decade at the heart of the EU are indeed legitimate. Responding to such a crisis during an extraordinary period of disruption, ill health and economic hardship is perhaps the biggest challenge that the EU has been confronted with since its very inception. This is tenfold when faced with a founding Member State questioning, through its judiciary, the integrity of EU Institutions. Let us hope that both the EU institutions and the German Constitutional Court will measure the cost of this episode and common sense will prevail.

The author wishes to thank Mike Gordon and his colleagues Anastasia Karatzia and Nikos Vogiatzis for their useful suggestions. This post was originally published on the UKCLA Blog and is reproduced here with permission and thanks.

Weimar-on-Danube: on the Hungarian Enabling Act, the European Response, and the Future of the Union

Image by Hans Hansen

Dr. Tom Flynn, Lecturer in Law, University of Essex

The current pandemic is testing political, legal, and social systems in significant ways. Europe has faced, among other things, strains regarding the notion of solidarity within the Union, questions as to the ability of economic and financial systems to co-ordinate responses, and now, in Hungary, challenges to the claimed democratic values of the Union itself.

The Hungarian Fundamental Law of 2011 regularly contemplates its own negation: Articles 48–54 establish a total of six ‘special legal orders’. These are the ‘state of national crisis’, the ‘state of emergency’, the ‘state of preventative defence’, the ‘terror-threat situation’, ‘unexpected attacks’, and the ‘state of danger’. It is through this last provision, defined as ‘a natural disaster or industrial accident endangering life and property’ that Viktor Orbán’s Fidesz party initially channelled its legal response to the Covid-19 pandemic. However, chafing under Article 53 (3)’s imposition of a 15-day limit on decrees under the ‘state of danger’, Orbán last week used his two-thirds parliamentary majority to pass what we can rightly call an Enabling Act, allowing him to rule by decree for an indefinite period. Others have written cogently of the Act as a ‘constitutional moment’of how it fits perfectly with Orbán’s long-established patterns of behaviour; and of the dim prospects of EU law being any use against it, at least in the short- to medium-term. The purpose of this short piece is to accept and adopt these critiques, and to contrast the brilliant opportunism of Orbán’s move with the lumpen foolishness of the European response. What emerges from such a study paints a grim picture: the chancelleries of Europe full of little Neros, fiddling while the Hungarian Rechtsstaat burns.

The response from the Commission and from the Member States has been pathetic. On 31 March, Commission President Ursula von der Leyen tweeted that:

‘[i]t’s of outmost importance that emergency measures are not at the expense of our fundamental principles and values. Democracy cannot work without free and independent media. Respect of freedom of expression and legal certainty are essential in these uncertain times.’

She added that the Commission:

‘will closely monitor, in a spirit of cooperation, the application of emergency measures in all Member States. We all need to work together to master this crisis. On this path, we’ll uphold our European values & human rights. This is who we are & what we stand for.’

Such dishwater platitudes are to be expected from a President who owes her position to the votes of MEPs from Fidesz and from Poland’s ideologically-related ruling PiS party, and who thought it a clever idea to try to appoint a Commissioner for ‘Protecting Our European Way of Life’, (a post later made no less nonsensical and insulting by being changed to one of ‘promoting’ this alleged ‘way of life’).

Only very slightly less disappointing was the following day’s joint statement from Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Portugal, Spain and Sweden. These 17 Member States expressed ‘deep concern’ about ‘the risk of violations of the principles of rule of law, democracy and fundamental rights arising from the adoption of certain emergency measures’.

A striking aspect of both these responses was their unwillingness—their seeming inability—to name Hungary, and to specifically state that Orbán’s power grab would be resisted and challenged. The consequences of this diplomatic squeamishness soon became clear: just a day later, on 2 April, in an act of the purest, most distilled chutzpah, the Hungarian government had the gall to join in adopting the statement issued by the ‘deeply concerned’ 17 Member States. Whatever his other flaws, we can credit Viktor Orbán with being a master of comic timing. Of course he joined the statement! Why wouldn’t he? After all, the statement did not identify any particular Member State as being the reason for the ‘deep concerns’ expressed, and by claiming to echo the Member States’ concerns, Orbán can continue to assert that his is an entirely mainstream—just very conservative—political project. This is in keeping with Fidesz’s continuing membership of the European People’s Party, which affords political cover to Orbán’s project of remaking Hungary in his image.

Meanwhile, the decrees are coming in thick and fast. The plan to build a ‘museum quarter’ in Budapest’s City Park, held up by the unexpected victory of the opposition in last year’s mayoral elections, will go ahead. A person’s legal sex will now be fixed at birth, and cannot be legally altered. Municipal theatres—rare islands of intellectual independence and the possibility of artistic and political dissent—will be brought under central government control. Quite what these measures have to do with stopping the spread of the coronavirus and managing the current crisis is not clear. What is clear is the Enabling Act is mere opportunism, seizing on a deadly threat to permit the government to go about its agenda with the very minimum of political, legal, and press scrutiny.

The idea of ‘naming and shaming’ as an enforcement method only works if you actually name offenders, and if the offenders are actually capable of feeling shame. Hungary’s mocking adoption of the joint statement demonstrates the sheer shamelessness of the Orbán government. The refusal of the Commission and the Member States to name Hungary and to specifically condemn Orbán’s behaviour illustrates the extent to which senior figures in Europe are beholden to a kind of comity of idiots, where each is afraid of being undiplomatic to the other, just in case the other might one day be undiplomatic to them.

The apparent reluctance of European heads of state and government to ‘interfere’ in one another’s ‘domestic’ affairs is a relic of a bygone age, a time when we really could draw such bright lines between the ‘national’ and the ‘European’. Our political leaders know this, but they maintain the pretence because it is a useful insulator: it preserves ‘the national’ as a kind of petty fiefdom, which will brook no criticism from outside, despite the fact that domestic action is influenced by, and in turn influences, action at the Union level and in every other Member State. The Enabling Act does not just endanger Hungary and Hungarians, but Europe and Europeans: the rot can spread from the Member States to the Union, from the Union to the Member States, and from one Member State to another. Orbán’s pollution of the Hungarian body politic; PiS’s degradation of Poland; and the murders of Daphne Caruana Galizia and Ján Kuciak are not directly related, but taken together they are all indicative of a Union sliding ever further into the mire, where the appearance of unity is more important than any actual substantive commonality of democratic standards, or those beloved ‘values’ of which we hear so much.

There has recently been at least some movement in terms of legal sanction for Orbán and those like him. AG Kokott last month argued that the CJEU should find Orbán’s ‘lex CEU’, by which the Central European University was hounded out of Budapest, in breach of EU and WTO law. This month, the CJEU held that Poland, Hungary, and Czechia had failed in their obligations under Union law to join in the EU’s relocation programme for the distribution of asylum-seekers across the Union. But these victories are partial, reactive, and belated, and have met with scorn from Fidesz. Union law in general, and the Treaties in particular, are simply not geared towards the rectification of the kind of authoritarian opportunism of which Orbán is the standard-bearer.

In the present state of Union law, the solution must be, and can only be, political. But the Hungarian Enabling Act exposes the idea that European conservatives can curb the excesses of their most obviously authoritarian bedfellows as the delusion it has always been. Nor are the EPP alone in sheltering undesirables: the Social Democrats and the Liberals are both happy to rely on the votes of members with questionable records and intentions.

The tension between ‘capital Europe’ and ‘social Europe’ is as longstanding as the disconnect between ‘economic Europe’ and ‘political Europe’, but the current crisis is bringing these tensions to boiling point. Most notable is the issue of ‘solidarity’, a word frequently on the lips of European leaders but only rarely evident in their actions. The crisis exposes the EU’s historical baggage about what it is, what it does, and what it’s meant to be. From bailouts to borders to non-interference in ‘domestic’ politics, we must stop pretending that the EU can exist as a kind of rarefied space of apolitical technocracy. In this sense, we can learn a valuable lesson from Orbán: opportunities ought not to be wasted. The homeless can be housed. Private healthcare systems can be nationalised. The Union can—and must—take action in defence of its claimed fundamental values.

A young democracy in an old nation at the very heart of Europe is being snuffed out before our eyes, and our leaders are doing nothing.

At least Nero could play the fiddle.

This post first appeared on the DCU Brexit Institute Blog and is reproduced here with permission and thanks.

COVID-19 and its Impact on the Constitutional Relationship Between Government and Parliament

Photo by Heidi Fin

Theodore Konstadinides, Professor of Law, University of Essex and Lee Marsons, Graduate Teaching Assistant in Public Law and a PhD candidate, University of Essex

The Coronavirus Act 2020, the UK’s most substantial legislative response to the Covid-19 pandemic, received Royal Assent yesterday after a fast-tracked procedure through both Houses. Indisputably, the pandemic falls within the range of situations under which it is constitutionally acceptable for Bills to be fast-tracked. While there is no corollary between an expedited piece of legislation and a bad piece of legislation, fast-tracking the Coronavirus Bill carries important implications for the constitutional relationship between Government and Parliament. Not least, parliamentarians had limited time to scrutinise legislation containing measures that have been described by the Bingham Centre for the Rule of Law as ‘the most sweeping powers ever taken by the UK Government outside of wartime’. But, in this context, the implications for the balance between Government and Parliament extend beyond the immediate passage of the Act. Therefore, while Tierney and King stressed the dilemma between safeguarding public health and the protection of individual liberties vis-a-vis fast-tracked legislation, the purpose of this post is to outline a number of concerns provoked by this pandemic on the Government-Parliament relationship more broadly, while also making some comments on the Act itself.

Since the increased power of the executive in relation to Parliament is an inevitable feature of fast-track legislation, the rule of law mandates effective parliamentary scrutiny in respect of both the way the Government will implement the new powers created under the Coronavirus Act as well as the detail in which Parliament will be updated about the reach of these powers across the UK. Two proposed amendments to the Bill tabled by David Anderson and Sarah Ludford in the House of Lords: one on the provision of meaningful information to Parliament would have gone beyond what is now Section 97 of the Act; and a second requiring that powers were exercised in accordance with the Human Rights Act 1998 and the Equality Act 2020, were both endorsed by positive ministerial statements (though not directly or publicly by a Cabinet Minister). With reference to meaningful information, the Minister, Lord Newby, committed the Government to providing an explanation in two-monthly reports laid before Parliament of the Secretary of State’s reasons for continuing to make use (or otherwise) of the provisions in Part 1 of the Act (as opposed to a mere report in accordance with Section 97 about whether the provision is in force and whether any power under subsection 3(b) has been exercised – the ‘switch on – switch off’ analogy made by David Anderson). With regard to compliance with the Human Rights Act 1998, the House of Lords’ proposed amendment included a new clause to be inserted in the Act entitled ‘Powers within the Act: necessity and proportionality’ While such a clause was not inserted in the final Coronavirus Act 2020, the Minister confirmed that the powers created will be exercised in accordance with the principles of necessity, proportionality and non-discrimination and in full compliance with human rights law. These statements provide some assurance as to the right balance being struck between the powers conferred on the Government and Ministers’ accountability to Parliament which are crucial in attaining the objective of constitutional propriety and legality despite the current emergency.

Despite ministerial promises that nothing in the Act contradicts constitutional principles, outside of the Act all the relevant coronavirus delegated legislation that we are aware of has been passed without recourse to Parliament, whether by using the positive or negative resolution procedure. This includes significant measures such as the Health Protection (Coronavirus) Regulations 2020, the Statutory Sick Pay (General) (Coronavirus Amendment) (No 2) Regulations 2020, and the Employment and Support Allowance and Universal Credit (Coronavirus Disease) Regulations 2020. In each case, the Minister stated that for reasons of urgency it was not possible to lay the Regulations before Parliament prior to signature. This is despite the fact that some of this delegated legislation – such as s.3 of the Health Protection (Coronavirus) Regulations 2020 – create summary offences and require whole swathes of otherwise lawful economic activity to cease.

In addition, the current situation is unique in that the practical reality of social distancing and self-isolation measures mean that many MPs and peers cannot attend Parliament to scrutinise government in either chamber. Already on 19 March, the Lord Speaker’s statement on the UK Parliament’s response to the spread of COVID-19 was unequivocal:

[…] no-one should consider it is their duty to be here in present circumstances. As Parliamentarians we have a duty to show leadership and heed the clear advice of the public health experts. I would ask that everyone continues to reflect on their own situation in the light of that advice, for their own good and for the broader public interest.

Furthermore, on the 23 March 20220 the Speaker’s Statement on attendance and distancing accepted that while video conferencing could mitigate any inconvenience posed by social distancing and self-isolation measures, the work of Committees will be affected by a combination of the limited facilities available and staff absences:

We recognise the need to improve our video conferencing facilities to enable those working remotely to engage in Committee proceedings. Regarding evidence sessions, these facilities are currently limited, not least because the management of these sessions requires expert operators to produce audio-visual output of a suitable quality for broadcast use and Hansard transcription purposes. The teams who make such arrangements work are currently under—I do stress—significant strain because of staff absences. Further work in this area will be taken forward as a matter of priority over the Easter recess. Once the current situation has settled, I will commission a review to ensure we can develop systems to ensure we are ready and able to be more agile in the future.

The above social distancing and self-isolation measures and the lack of Parliament’s ability to replace in-person interactions with a virtual environment of online proceedings will no doubt have an important effect on the capacity of Parliament to scrutinise major developments, seek expert advice and hold the Government into account in the coming weeks and months.

Admittedly, some welcome developments have occurred. On 25 March 2020, for instance, the Speaker of the Commons provided a statement explaining that he was to permit Prime Minister’s Questions to run for one hour instead of the ordinary half an hour. This was to:

[…] serve as an effective replacement for separate statements on the situation of coronavirus. I will allow the Leader of the Opposition two sets of questions—he will have a total of 12, which I expect to be taken in two sets of six. Similarly, I will allow the leader of the second largest party four questions, in two sets of two. I will also, exceptionally, call a further question from an Opposition Front-Bench spokesperson.

Similarly, a number of parliamentary committees have initiated inquiries into the Government’s response to Covid-19. The Education Committee launched an inquiry on 26 March into the implications of coronavirus policy on education and children’s services, for instance, and the Joint Committee on Human Rights launched an inquiry previously into the human rights implications of the then Coronavirus Bill.

Nevertheless, these successes are made bittersweet now that Parliament has risen for an early Easter recess until 21 April 2020. While parliamentarians can submit written parliamentary questions during a recess (p. 11) and committee inquiries can continue (or, at least, in the limited way that they can be continued), optimal scrutiny of Government is less likely to be achieved if parliamentarians cannot utilise all of the parliamentary tools at their disposal. Parliamentarians can no longer ask oral ministerial questions during a recess, for instance. This will carry significant implications for parliamentary scrutiny of executive action with regard to the ability to question Ministers about decision-making and policy development, which is naturally changing daily – perhaps more frequently. To provide an important topical example of this, on 25 March 2020, Jesse Norman MP, the Financial Secretary to the Treasury, was asked by Lloyd Russell-Moyle, Labour MP for Brighton Kemptown, how the Government would be scrutinised by Parliament as to its financial support for the self-employed, to be announced after the recess started. The Minister’s response was:

When such a package is brought forward, there will be ample opportunity to debate and discuss it in the House when it returns. Before that, the Government will be held to account in the public square in the usual way, and Ministers are available for direct interrogation by any Member of Parliament who wishes to contact them.

Nevertheless, Russell-Moyle was not satisfied with this response:

It is a shame that the parliamentary authorities have not managed to get their act together to organise an electronic, online continuation of proceedings. During a recess in normal times, in a crisis, we would be recalled, and this is a crisis, so we should be able to continue our work. For Ministers to ask for our work to continue through correspondence is not satisfactory.

Russell-Moyle was perhaps correct in his pessimistic assessment. On one day – 24 March 2020 – there were 181 references to ‘coronavirus’ in written parliamentary questions asked by MPs to Ministers. Given the limited time and resources available to Ministers and their officials, it does not seem likely that written questions will provide a panacea to other lost parliamentary opportunities – whether committees which cannot continue as usual or oral questions which cannot proceed at all.

As regards the duration of the Act’s provisions, Section 88 of the Coronavirus Act 2020 allows a Minister to suspend (repeal) or revive (save to provisions set out in subsection 6), more than once, any provision of the legislation by passing a Regulation. This appears to be a wide power encroaching upon Parliament’s legislative authority and sovereignty and it is further amplified by subsection (5) which provides that the Minister can pass Regulations for different purposes, on different days in different areas; and can make technical transitional, transitory and savings provisions. Last but not least, despite the two-year sunset clause in Section 89 of the Act, Section 90(2) provides that a Minister can extend (for up to six months at a time) or terminate any of the respective Regulations beyond two-years. This seems to be necessary in the face of the pandemic but since emergency powers are meant to give the Government a temporary boost, there is no valid reason why Parliament cannot get back in the game and manage the effects of the Covid-19 pandemic when authorities start easing the current lockdown.

All in all, the nature and scale of the Coronavirus Act 2020 is extraordinary. While the current measures may have some effect in enabling the Government to respond to a public health emergency and manage the effects of the pandemic, they are encroaching upon Parliament’s territory and endanger the principle of the separation of powers. While the delegated powers in the Act are broad and the extent and effectiveness of the new powers under the Coronavirus Act 2020 is unclear, the Government is under a duty to provide clarity about their use across the UK as well as the necessity of the relevant compliance measures that it will adopt in the near future.

This post was originally published on the UKCLA Blog and is reproduced here with permission and thanks.

Haim Abraham’s paper on Parenting, Surrogacy and the State cited by the Supreme Court of Israel

The Israel Supreme Court recently cited a paper written by Haim Abraham, Lecturer in Law at the University of Essex.

The paper titled ‘Parenting, Surrogacy, and the State’ demonstrates that Israel’s legislation, and regulation of assisted reproduction treatments, systematically discriminates individuals and same-sex couples based on sexual orientation, family status, or gender.

By surveying the legislative and social developments in Israel in relation to surrogacy and the conceptualisation of the family unit, Haim shows that the right to parenthood is a fundamental negative constitutional right which extends to the use of surrogacy treatments. Furthermore, Haim establishes that the prohibition on same-sex couples and single individuals to engage in surrogacy arrangements fails to adhere to the principle of proportionality, as other less discriminatory practices are available and the harm to same-sex couples and single individuals in the current legislation outweighs its benefits.

On 27 February 2020, the Supreme Court reached the same conclusion. It held that the current Surrogacy Act of 1996 discriminates against same-sex couples and single men, and that the infringement on the rights to equality and parenthood is disproportionate.

Haim Abraham’s full paper in Hebrew is available here.

Clause 26 of the European Union (Withdrawal Agreement) Bill 2019-20: An Exercise of Constitutional Impropriety?

Prof Theodore Konstadinides (School of Law, University of Essex) and Riccardo Sallustio (Solicitor, Grimaldi SL LLP)

The European Union (Withdrawal Agreement) Bill 2019-20 will pave the way for the UK to ratify the UK-EU Withdrawal Agreement and thus depart from the European Union (EU) soon thereafter, having received its third reading in the House of Commons just last week. This contribution examines certain major consequences deriving from the Bill becoming law and, in particular, the controversial, but little discussed Clause 26 which (as Lord Pannick remarked in a recent article in the Times) requires particularly careful scrutiny.

Clause 26 introduces in Section 6 of the EU (Withdrawal) Act 2018 new subsections (5A) through (5D) that allow Ministers of the Crown to issue regulations to any “relevant court or tribunal” on how to interpret and even to disapply EU retained case law as well as domestic case law which relates to EU retained case law. The word ‘relevant’ seems to refer only to those courts that were meant to be bound by decisions of the CJEU on interpretations of retained EU law prior to exit day / implementation date. Although the scope of the respective regulations is not defined in the Bill, when added on to the existing Section 6 of the EU (Withdrawal) Act 2018, it can be argued that they shall not apply to the Supreme Court, or the specific circumstances when the High Court is not effectively the highest legal court. As these courts are not bound to interpret retained EU law in line with Court of Justice of the EU (CJEU) decisions, they can surely decide not to follow them on the same basis as they decide not to adhere to one of their own precedents. The phrase “relevant court” in Clause 26 thus suggests that these regulations probably cannot apply to the Supreme Court, although this is not clarified in the wording of the Bill and can be the subject of speculation.

Beyond prescribing the extent to which a court may not be bound by retained CJEU case law, a Minister of the Crown may further specify the test that judges must apply in deciding whether or not to depart from CJEU case law or relevant considerations in applying the respective test. It would not, therefore, be an exaggeration to say that the power conferred upon the executive under Clause 26 of the EU (Withdrawal Agreement) Bill to interpret the case law of the CJEU and related domestic case law is rather unprecedented. This was also pointed out by Ruth Cadbury MP and Joanna Cherry QC MP during debate on the Bill in the House of Commons. What is more, Lord Pannick, Baroness Taylor of Bolton, Lord Beith and Lord Anderson of Ipswich have moved an amendment of Clause 26 which proposes to remove the power of Ministers by delegated legislation to decide which courts and tribunals should have power to depart from judgments of the CJEU and by reference to what test.  

Judicial independence

Courts are not pre-empted from choosing how to decide future cases involving, for instance, CJEU past precedent dealing with the scope of general principles of EU law. Nevertheless, we argue in this post that the enactment of Clause 26 would have negative implications both internally and externally. First, Clause 26 would raise, at the domestic level, constitutional concerns over the protection of the rule of law in the UK and its subcomponents including legal certainty, the separation of powers and judicial independence. More specifically, Clause 26 appears to go against the spirit of the statutory duty on government ministers in accordance with Section 3(5) of the Constitutional Reform Act (CRA) 2005 to uphold the independence of the judiciary, barring them from trying to influence judicial decisions. This is of course rather paradoxical considering that in 2017, Lady Hale mentioned that ‘in a recent survey of thousands of judges from 26 European countries, in six countries the judges’ perception of their own independence scored more than nine out of ten: the United Kingdom was one of those countries.’ At the same time, we need to acknowledge that the CRA wording is subject to interpretation since it neither provides a definition of judicial independence nor does it articulate the degree of independence possessed by a judge or what is perceived to be a threat to judicial independence.

The above sentiment aside, the compatibility of Clause 26 with Article 6 ECHR that requires that a court be independent is at best questionable. Clause 26 would appear to impair the very notion of a “tribunal” that should have the power to give a binding decision which may not be altered by a non-judicial authority to the detriment of an individual party as established in Van De Hurk v. The NetherlandsHence it runs the risk of being found not in accordance with Article 6 of the ECHR if challenged. Notably, the Government’s memorandum on compatibility of the Bill with the ECHR does not address Clause 26. The executive’s position is that the Clause does not impinge on any ECHR right.

Duty to give reasons

As mentioned, under Clause 26, Ministers are bestowed with overly broad and subjective powers to determine the extent to which judges are to be bound by retained EU case law. It is worth highlighting that under Clause 26, Ministers do not need to lay a statement setting out the reasons for the respective regulations explaining why this would constitute a proper and fair course of action. This is somewhat in contrast with the public law proposition behind the duty to give reasons that decision-makers must act for proper purposes. Although there is no general duty to give reasons at common law, reasons will be required where they are necessary to allow the courts concerned to scrutinise the administrative decision effectively. While Ministers are required under Clause 26 to consult with the chair of the relevant court or tribunal prior to enacting the relevant regulation, primary legislation sets no limits on how they can exercise such powers or the extent to which they need to explain points of fundamental importance. We can, therefore, assume that a regulation can go well beyond a technical interpretation and determine a change that distorts the meaning of EU law.

But, beyond politicians interfering with the work of judges, why is distorting the meaning of EU law significant, especially since the UK is on its way out of the EU? One way of explaining the rationale behind Clause 26 is allowing the executive to decide that a particular interpretation of retained EU law should be changed. In that respect it constitutes a means of over-turning established interpretations of retained EU law rather than overturning retained EU law itself – perhaps to cover for when the relevant sunset clause runs out. For example, the notion of ‘worker’ is based on established CJEU case law which would be used by UK courts when interpreting retained EU law (Directive 2003/88/EC on the organisation of working time) to ascertain the status of a parcel courier as a worker. The Government, which may adopt a particular stance on protecting the rights of people working in the gig economy, may wish to change the CJEU’s interpretation given to the term ‘worker’ (to include or not a contractual right to use a substitute to perform all or part of their work), but without enacting legislation. Hence, Clause 26 would enable the Secretary of State for Employment to adopt delegated legislation to make provision for the courts to no longer follow the meaning of worker in CJEU case law and to give it a different meaning instead (i.e. that by sending a substitute they cannot be regarded as a worker in accordance with the Employment Rights Act 1996).

An orderly Brexit

It is well understood that the focus of the EU (Withdrawal) Act 2018 and of relevant provisions of the EU (Withdrawal Agreement) Bill 2019-20 is on the winding down of the application of EU law in the domestic order. This is different however from allowing the enucleation of EU retained case law or the evisceration of EU retained law from related domestic case law through ministerial acts. Although the UK will indeed be leaving the EU, the risk of distorting EU law upon the Bill becoming law is still significant because it frustrates the principal aim of the EU (Withdrawal) Act 2018, which is to allow for an orderly exit of the UK from the EU.

While of course the scope of the powers conferred upon government ministers by Clause 26 is, obviously, less wide than the Henry VIII powers set in the EU (Withdrawal) Act 2018, there is no limitation on the nature of the case law that may be affected by a ministerial regulation. As such, a minister, for instance, would be able to disapply or grossly misinterpret EU retained case law and related domestic case law even if the subject-matter engages with the protection of fundamental rights (such as citizens’ rights). Such an alteration, of course, would need to be subject to compliance with common law rights, human rights scrutiny and the rule of law.

Legal certainty

The fact that ministerial powers under Clause 26 are subjective and can be exercised in the abstract and that no statement underlying the purpose of the regulation is required further imply that it would be very unlikely for the ministerial intervention to be tested against reasonableness under Wednesbury (or proportionality which although not a general standard of review could come into play through an application of the principle of legality or if Article 6 ECHR were engaged) in a judicial review challenge. In such circumstances, it may be difficult for the court to engage in questions of weight and balance, which would ordinarily need to be determined in the context of particular factual and legal circumstances.

From a practical standpoint, the enucleation/evisceration of EU retained case law from domestic case law may prove at times to be problematic and create incoherent outcomes. There are concerns over compliance with legal certainty requirement as the powers under Clause 26 can be interpreted broadly and inconsistently. For instance, a regulation can, in practice, also apply to a dispute involving a principle established by the CJEU in its case law that is already pending at the time of its enactment.

EU rule of law protection

While it would be logical to assume that Clause 26 would only come into effect after the end of the implementation period (i.e. when the supremacy of EU law under the Withdrawal Agreement is no longer in effect, except for some exceptions such as Clause 13(2) of the revised Protocol on Ireland/Northern Ireland), its enactment would be short-sighted from a UK negotiating position in the context of a future trade relationship with the European Union. Indeed, the EU has been increasingly seeking that free trade agreements include a full ‘human rights clause’ covering also the respect of the rule of law (see the Framework Agreement with the Republic of Korea, Article 1(1) and the Cotonou Agreement with ACP countries, Article 9(2)) in order to ensure that its external policies are not applied in violation of the rule of law. From a more general perspective, it would be naïve to believe that respect for the rule of law in the EU would be merely a prerequisite for the protection of the fundamental values listed in Article 2 Treaty on European Union (TEU) and for upholding all rights and obligations deriving from the Treaties and would not have any role in the EU’s external relations.

On a more general level, the proposal for Clause 26 ignores the recent focus of the EU institutions on the rule of law and will most likely not go unnoticed in Brussels. The new EU Commission is pursuing a rule of law strengthening project following the July 2019 Communication on “Strengthening the Rule of Law within the Union – A blueprint for action” which received in the last few months wide support from Member States introducing the concept of rule of law conditionality. The new European Parliament has also recently focused on separation of powers and independence of the judiciary in Poland in the context of the relevant Article 7(1) TEU procedure. In this prevailing mood, the UK’s respect for the rule of law would be high on the agenda when the UK-EU trade relationship is for approval by the Member States and the European Parliament during the course of 2020.

The fact that the UK government will soon ‘get Brexit done’ does not render it free from facing constitutional propriety, its duties under the Withdrawal Agreement and the European rule of law. 

The authors would like to thank Alison Young for her comments and suggestions. The post first appeared on the UK Constitutional Law Association Blog and can be accessed here.