The UK Supreme Court as a constitutional ‘longstop’: Michael Gove’s evidence to the House of Lords Constitution Committee

The Lord Chancellor and Justice Secretary, Michael Gove, gave evidence to the House of Lords Constitution Committee earlier today. In this brief post, I pick up on just one of the issues raised by his evidence, namely the notion that the UK Supreme Court might be made, by a British Bill of Rights, into what Gove called a ‘constitutional longstop’ court—a constitutional court, in other words. This builds to some extent on the ill-defined notion, advanced by Gove’s predecessor, Chris Grayling, of ‘making the UK Supreme Court supreme’. However, I have pointed out before that this notion was always more about reducing the power of ‘Europe’ than augmenting the power of British judges, and that still seems to be the case. In particular, Gove appears to envisage not that the Supreme Court should be given power to override Acts of Parliament that conflict with fundamental constitutional values or principles—which is what one would normally expect of a ‘constitutional court’—but rather that the UK Supreme Court, in newly constitutional guise, should be equipped by a British Bill of Rights to stand up to European Union law. It may well be that Gove envisages something similar in respect of the European Convention on Human Rights, but since it was EU law—and, in particular, the EU Charter of Fundamental Rights that he appeared to have in his sights when making these remarks—I will focus in what follows on the EU side of things.

It seems, in fact, that Gove envisages some form of codification of the approach already commended by the Supreme Court itself in its judgment in the HS2 case, albeit that—surprisingly, given the nature of what he proposes—Gove made no mention of that case. In HS2, Lords Mance and Neuberger, in a joint judgment with which all of the other Justices agreed, said:

The United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Rights Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law. It is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation.

On this basis, said Lords Mance and Neuberger, it may be the case—although it turned out not to be the case in HS2 itself—that the European Communities Act 1972 would not require a UK court to prioritise EU over UK law if the UK law in question enjoyed a particular level of constitutional fundamentality. In this way, the HS2 case suggested that there is an immanent hierarchy of constitutional ‘instruments’ and values, and that the ECA 1972’s status as a constitutional instrument does not guarantee that it—and hence the EU law to which it gives effect—is capable of impliedly overriding yet-more-fundamental constitutional instruments or values. This, in turn, implies that the UK’s unwritten constitutional arrangements approximate, in terms of the relationship with EU law that they produce, far more closely than might be assumed to those found in Member States such as Germany. This is not to suggest that other Member States are—or that the UK under the proposed arrangements would be—free as a matter of international law to depart from EU law (or the ECHR). However, as Lord Reed explained in HS2, the extent of EU law’s purchase upon the domestic legal system is a matter of domestic law—and what Gove has in mind appears to harness this analysis by emphasising the content of domestic constitutional law norms that may shape national courts’ domestic legal obligations to give effect to EU law.

But given that the Supreme Court has already canvassed these issues in its HS2 judgment, what might legislating on this matter add? The thinking, presumably, is that such a text might spell out a series of British constitutional red-lines with an explicitness that the common-law-constitutionalist approach embodied in HS2 cannot. Including such red-lines in a Bill of Rights might imply that they are themselves to be concerned with fundamental rights, but Gove hinted that this project might go further. Indeed, he suggested, referring to Laws LJ’s judgment in Thoburn, that the notion of constitutional statutes might be fleshed out and given a more systematic character, the implication being that such a body of constitutional legislation, once identified, might be given, as a matter of domestic law, explicit statutory priority over any conflicting EU law. (A potential difficulty with this analysis, however, is that, at least as far as Laws LJ was concerned in Thoburn, the designation of legislation as ‘constitutional’ is necessarily a matter for the common law as opposed to Parliament. Indeed, he rejected out of hand the notion that Parliament might be capable of giving certain legislation a special status by means of, for example, contingently entrenching it.) The same would presumably go for the ECHR—the thinking being that the Supreme Court would be given an explicit, domestic, democratic mandate to ‘stand up’ to Strasbourg, acting as a guardian of British, as distinct from European, human rights norms. What those British norms might be—other than the right to trial by jury: an old chestnut that Gove brought out early on in his evidence to the Constitutional Committee—is another matter, and not one for this post.

I make no comment here on the wisdom of the form of codification that Gove appears to envisage. It is, however, worth pointing out that if the British Bill of Rights project is to encompass questions of the type outlined above, then the project is likely to become even more complex that it already is. Indeed, it might risk drawing the Government into a constitutional mire that engages all three of the key respects in which the modern British constitution is multi-layered. First, any proposal for a British Bill of Rights inevitably raises questions about the relationship between (on the one hand) UK law and the sovereignty of the UK Parliament and (on the other hand) the ECHR and the UK’s binding obligations under it. That is particularly so if part of the agenda behind a British Bill of Rights is some form of decoupling of domestic human-rights adjudication from the ECHR or the jurisprudence of the Strasbourg Court. Second, any proposal to replace the Human Rights Act with a Bill of Rights raises questions (on which I have written before) about the constitutional (but not legal) capacity of UK institutions to insist upon changes to human-rights law given the complications that arise in this area thanks to devolution and the Sewel Convention. And now, third, it appears that the Bill of Rights project, at least as presented by Gove in his evidence to the Constitution Committee, may raise fundamental issues about the relationship between UK and EU law, and hence the relationship between the domestic doctrine of legislative supremacy and the EU primacy doctrine.

To add that complication into an already heady mix of constitutional questions would be ambitious, to say the least. This is not to suggest, however, that such questions should necessarily remain unconfronted. Confronting them in a systematic manner would represent, in some respects, a refreshing break with the British constitutional tradition of muddling through and leaving the hardest questions unanswered (or to judges). Indeed, some of Gove’s evidence indicated that he and his officials may be thinking about a range of constitutional matters in a way that is, given the typical model of constitutional reform in the UK, surprisingly holistic. There will, inevitably, be a wide variety of views about the conclusions at which they ultimately arrive. But if it is in fact the case—and only time will tell whether it is—that these issues are being addressed in a way that is somewhat less piecemeal than usual, then that, at least, is to be welcomed.

I have written in more detail about the HS2 judgment in the European Constitutional Law Review. A copy of my paper can be downloaded here. This post is written in a purely personal capacity. In particular, it is not written in my capacity as Legal Adviser to the House of Lords Constitution Committee.