A constitutional court for the UK? My letter to The Times

In a leading article published on 3 February 2016, The Times offered its support to the notion of establishing a constitutional court for the UK—an idea floated, if only obliquely, by the Justice Secretary Michael Gove. The attraction of a constitutional court, said The Times, is that it would enable the UK to stand up for national values in the face of any European laws that cut across them:

Prime minister’s questions yesterday was never going to be straightforward for David Cameron. He came to parliament accused by his own backbenchers of failing to stand up for Westminster sufficiently robustly in his European renegotiation. One prominent figure, Boris Johnson, gave him a chance to restate his case, and Mr Cameron did his best. Another, Michael Gove, has gone further, floating the idea of a UK constitutional court as a forum for the scrutiny and even rejection of European Union legislation. The idea deserves serious consideration but Mr Cameron failed to mention it. He should have done.

A British constitutional court might help not just to assuage the fears of Mr Johnson and Conservative Eurosceptics. It could help to correct Britain’s unbalanced relationship with Europe more effectively than the draft revisions to our relationship with Brussels published by Donald Tusk, president of the European Council …

The government has had bruising encounters with the European Court of Human Rights over deporting radical prisoners, the right of criminals to family life and prisoner voting. A bill of rights and a constitutional court could help to restore public confidence in the law …

I wrote a letter to The Times responding to their leading article. They have kindly published the letter, the text of which follows:

Sir,

The debate concerning the UK’s relationship with ‘Europe’ is not well served by your leading article ‘Courts and Constitution’.

First, it conflates the legal positions implied by the UK’s membership of the European Union and by its being a party to the European Convention on Human Rights. Those legal positions are significantly different, and it is unhelpful to lump them together as your leading article did.

Second, the article presupposes that concerns about ‘sovereignty’ can be addressed by innovating on the domestic level, such as by creating a ‘constitutional court’. Yet the UK’s membership of European institutions involves the UK’s having entered into commitments that are binding upon it in international law; that position can be adjusted neither by establishing a constitutional court nor (as the Prime Minister has suggested) by legislating to assert parliamentary sovereignty.

Third, your article argues that such a court could safeguard constitutional values that might be threatened by European law. In fact, the Supreme Court has already indicated that this is possible. Whether that can be reconciled with the UK’s obligations in international law is another matter, but the suggestion that a constitutional court is required is spurious.

Yours,
Mark Elliott

I have written at greater length about these matters elsewhere, including in a blog post reflecting on the evidence that Michael Gove recently gave to the House of Lords Constitution Committee and in an article in the European Constitutional Law Review on the Supreme Court’s judgment in the HS2 case.