Share it

Lady Justice Arden has given an interesting speech concerning the relationship between the domestic Courts and the ECJ / ECHR, in which she called for the UK Supreme Court to act as a “spearhead” for reform.  Arden LJ was addressing Lincoln’s Inn in the annual Sir Thomas More lecture, and the full text of her speech, which was entitled “Peaceful or Problematic?  The Relationship Between National Supreme Courts and Supranational Courts in Europe”, can be read here.

Arden LJ set the context for her speech by explaining the considerable benefits bestowed to domestic law by the jurisprudence from Luxembourg and, in particular, from Strasbourg.  For example, she cited the Belmarsh case as an example of how the ECHR (“in effect a shadow constitution for the United Kingdom”) has enabled the English Courts to apply greater scrutiny to the exercise of executive power – echoing Lord Falconer’s view that the anti-terrorism cases are perhaps the clearest example of the greater independence, and hence greater impact on civil society, exercised by modern Courts in comparison to the 1970s. 

However, against such benefits must be weighed the potential pitfalls of surrendering too much power to the supranational Courts of Europe.  Arden LJ is clearly no fundamentalist federalist.  In 2004, when the Constitutional Reform Bill was being debated, her Ladyship argued for greater constitutional power to be granted to the proposed Supreme Court such that its function would be (in line with the approach taken in certain other EU states) ”to guarantee national constitutional rights not only as against state bodies but also against the European Union”.  In the absence of a formal written constitution, that idea never came to fruition and the UKSC effectively inherited the same clothes worn by the House of Lords’ judicial committee, with no power to strike down legislation, and inherently in a more subordinate position to European jurisprudence - including to an ECJ committed to being an “engine of integration” and passing decisions such as West Tankers which make fundamental changes to the fabric of national law, and to an ECHR which on occasions passes inconsistent decisions (for example, Osman v UK and Z v UK).

How best to avoid such problems?  Arden LJ suggested a “toolkit” containing four tools in particular which the English Courts, led by the UKSC, should employ to improve their relationship with the European institutions by increasing their influence.  First, there must be more dialogue between national and European Courts.  This is particularly so with the ECHR: whilst the Article 234 reference provides a natural process of dialogue, in ECHR petitions brought by individual litigants by comparison give domestic Courts little control.  Hence more dialogue is needed, both informally through increased meetings of judges, and also through exchange of judgments whereby national courts demonstrate their own intrepretations of EU or ECHR rights.  In this regard, Arden LJ makes a strong call for English judges to be less deferential than has historically been the case – they should, for example, be free to exercise a “right of rebuttal” where Strasbourg has not made a particular principle clear.  Second, both Luxembourg and Strasbourg should be quicker to embrace the principle of subsidiarity and allow national Courts a greater margin of appreciation to deal with local issues.  This would help both Courts share their massive case load (by illustration, according to its President Jean Paul Costa, the ECHR currently has a back log of 97,000 cases).   Third, temporal limitations (giving prospective effect to decisions to allowing states more time to respond) should be used more often.  And fourth, clearer judgments from Europe are required.  For example, Arden LJ’s view is that the ECJ’s practice of giving single judgments, without dissents, leads to generalisation and deprives the jurisprudence of the element of debate that is so important to good policy making.

Her Ladyship concluded with the following call to arms: “the strategy for a national court may well be one with should be spearheaded by its supreme court.  I look forward to seeing whether the new Supreme Court of the United Kingdom rises to the challenge”.  Likewise, UKSC Blog looks forward to seeing how Arden LJ’s toolkit comes to be employed by the country’s new top Court.

Tags: