Recent media reports have suggested that the government plans to introduce a new ‘constitutional court’, based on the model of the German Federal Constitutional Court, in an attempt to assert parliamentary sovereignty ahead of the upcoming EU referendum. Jeff King argues that, for a variety of reasons, this is not a sensible proposal.
Of all the rushed ideas for major constitutional reform that could be adopted by the current government, the one for a UK constitutional court (UKCC) as a solution to the perceived EU problem is by far the worst. The President of the Supreme Court Lord Neuberger told The Times last week that the idea is a ‘recipe for complication, for cost and for unnecessary duplication’, and the cross-bench peer Lord Pannick added that ‘the proposal has no merit’. In this post, I am less kind to the idea. I argue that it is half-baked, unnecessary, and potentially dangerous, regardless of one’s view of the desirability of an entrenched constitution protected by constitutional judicial review.
The idea of a constitutional court emerged in the writings and political activism of the great Austrian jurist, Hans Kelsen, and was a component of a vision of constitutions as higher law operating within a refined and stratified system of private and public law (see Hans Kelsen, ‘La garantie juridictionnelle de la constitution’ (1928) 45 Revue de Droit Public 197; ‘Judicial Review of Legislation: A Comparative Study of the Austrian and American Constitution’ (1942) 4 J of Politics 183, and General Theory of Law and the State (1945) Part I chs. IX; Part II, chs. II and III). These ‘Kelsenian constitutional courts’ (as they are often called) account for the majority of the world’s highest courts with constitutional jurisdiction. They typically have multiple chambers. They normally centralise all judicial review of legislation instead of permitting its review by other courts. They are distinct from administrative law and social courts pursuant to well-developed doctrinal systems of law. And the appointments process for the judges are usually deliberately politicised.