may be based on the Kelsenian and American models, however, all are subject to the unique political tensions of their jurisdictions. In fact, the constitutional settings of continental European countries differ so significantly, that their raison d’être range from constitutional rights protection in Germany, to monitoring devolutionary powers in Spain and balancing governmental powers in France.
Under current procedures, the UKSC exhibits too many fundamental differences to its European counterparts to be termed a CC; specifically, it lacks independence from the judicial branch to act as broker of conflicts between the branches (French raison d’être) and the ability to enforce the constitution against unconstitutional legislation (German raison d’être). Yet, its similarities – constitutional statutes, ECHR application, devolved competences and application of EU law – can be deemed sufficient to allow for a detailed comparison with the European CCs in order to bring to the fore areas of reform.
1) Aspects of the UKSC layout that should be reformed, based on comparative experience
Judicial appointments: election procedures; background of judges; tenure
Whilst UKSC justices are subject to less politically charged selection procedures then some of its European counterparts, the nominations from the JAC have been criticised for being overtly introverted and impervious to the public sentiment.
Although the objectives of the CRA, Schedule 14, signal a move towards greater separation of powers as well as selection based purely on merit and not political bias, for the UKSC to permissibly defend peoples’ basic rights against Parliament, the bench must itself have democratic legitimacy, typically achieved through appointment by elected officials or after bargaining among political parties.
To prevent the SC from becoming a political tool to advance governmental objectives and “behave (…) as partisans and not as judges”, Stone suggests that the party in power should be denied a veto, justices instead being approved by a majority ruling in both houses of Parliament – this procedure is currently successfully practiced in Poland and Germany.
CCs abroad typically appoint a combination of politicians, academics and ordinary judges to establish a more democratic and specialised outlook on politically and constitutionally sensitive issues. There has been some support that a reformed UKSC should also echo such a diversity in backgrounds, not le
