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Some time ago, after noting a posting from colleagues at the Dutch legal blog, Publiekrecht & Politiek, comparing the powers of our Supreme Court with the Dutch courts, we stated “We look forward to further insight into the Dutch legal system”. Publiekrecht & Politiek start a blog posted today:
“Our friends at the UKSCblog have stated that they are eagerly awaiting further insight into the Dutch legal system. A recent discussion in the most widely read legal magazine in the Netherlands, the Dutch Lawyers’ Magazine (NJB), may provide that insight.”
Indeed it does.
The article as recounted in the blog notes that while the Dutch courts have the power (under Article 94 of the Constitution) to strike down statute law on the basis that it is inconsistent with international treaty obligations, there is no power to strike down statute law on the basis that it is inconsistent with the Constitution itself – the very reverse of the position under US law. In the UK of course, the only power for the courts to strike down statute law is when it is inconsistent with EU law, although it might be said that in an era of purpose interpretation, they can also construe legislation into oblivion of they so wish.
The blog informs us that to remedy this anomoly, an an amendment to the Dutch constitution is required. However, such an is exceptionally difficult to achieve, requiring two votes of each of the Houses of Parliament and in respect of the lower house (the Tweede Kamar) the two votes straddling a general election and with two thirds voting in favour for the second vote.
A bill to make the necessary amendment introduced by Dutch politician Femke Halsema of the Green Left has now passed both Houses for the first time, albeit with a slim 37-36 majority in the Senate. Now Ms Halsema must wait until there is a general election which is expected in 2011 to obtain the second votes
The development in the Netherlands, seeking to confer greater powers on the courts, is is stark contrast with the position here where, as noted by Sir Ken Macdonald on UKSC Blog, the Conservatives are seeking to repeal the Human Rights Act 1998 and the relatively meagre review jurisdicition that gives our courts.
