can issue a declaration of incompatibility. Although s.4 cannot declare the incompatible legislation ‘unlawful’, this high-profile and very rare pronouncement usually leads to legislative amendments by Parliament.
Notably, ever since the Solange I judgement in 1974, the German FCC has also shown unreserved defiance to EU legislative supremacy by exercising review as a means of maintaining its constitutional focus on human rights: the Brunner case set an ex-ante control standard for the integrative process with absolute limits, whilst the CC has placed restrictions on the common policy agenda, thus, also limiting future proposals.
As a point of principle, Lord Reid explained in HS2, that the impact of EU law depends on the norms of the UK legal system – if the law in question should enjoy a particular level of constitutional fundamental as in Germany, the UKSC would not be bound by the sovereignty of EU law to the same extent. Only a small number of explicit human rights and liberties are found in the French Code Napoleon preamble, instead affording greater degree of creativity to CC judges to establish higher law precedent as a means of overcoming EU primacy.
The effects of this modus operandi are also starting to be witnessed in UKSC jurisprudence following the ‘creative interpretation’ of Thoburn and HS2, ensuring effect is given to enshrined human rights. According to Ekins, the enforcement of these principles by the UKSC is indicative of a departure from its traditional role as the highest ordinary court, to that of a constitutional norm protector, reflective of the CC definition.
The former Lord Chancellor, Michael Gove, supports this approach of ex-ante review as this would expand legislative bounders and at the same time preserve the principle of parliamentary sovereignty.
In addition, there has been considerable support for a British Bill of Rights to defend UK civil rights broader European paradigms, evidenced by the 2013 Judicial Review and Transforming Legal Aid Proposals which highlight the profound and constitutionally significant inability of individuals, charities and NGOs to defend their rights in the UK court system. Chief Justice, Lord Neuberger, commented on this lack of access to rights in HS2: “It is no good granting people rights if they cannot (…) get effective enforcement procedures in respect of any judgement based on those rights”.
4) Summary
If the UK decides to adopt certain aspects of CCs in continental Europe, there are key constitutional aspects that pose a conflict of interest and would be very difficult to reconcile; to name just two:
Firstly, any proposal for ‘higher’ constitutional law will inevitably raise questions about the relationship between UK law and the sovereignty of the UK Parliament; It is no coincidence that most CCs are situated in civil law jurisdictions where constitutional legislation is explicitly distinguished from ordinary legislation – in Germany, the fundamental constitutional principles are clearly defined in Art 1, 20 and 79 of the Grundgesetz, a code dedicated to constitutional issues.
Secondly, any proposals to replace the HRA with a UK Bill of Rights would raise fundamental questions about the relationship between UK and EU law and consequently the relationship betwee
