to balance political tendencies. To achieve this, reforms in the UK could embrace a German-like approach in which knowledge of the constitution/lawsand an age requirement of 40 are the only essential prerequisites; this would mean that respected lawyers, judges and law professors also have the possibility of being considered for the positions.
CC judges in the European model typically serve in fixed-terms of between 9-12 years to ensure accountability. Whilst there is no one right way of appointing judges to these influential positions, the USSC model of granting tenure for life to judges affects the long-term legal and political scene of the country, thus, simultaneously resulting in an overly politicised and fiercely contested re-appointment procedure – instead, a system like in Germany (elections take place every 12 years) or in France (a third of judges get re-elected every three years) should be adopted by the UKSC.
2) Aspects of UKSC activity that, by comparative experience, could be improved
Legislative ex-ante review:
As the raison d’être for the inception of the Conseil Constitutionnel was to broker conflicts between the legislative and executive branches, up to the 2008 constitutional reforms, ex-ante review was the main method for the parliamentary opposition to challenge the constitutionality of statutes in France.
The UK’s own constitutional reforms of 2005 indicate that government is responding to the need for continued constitutional change, especially a more transparent separation of powers between the three branches; Yet, whilst Parliament exercises less leverage over judicial decisions, the UKSC has not been granted to review legislative proposals in neither an ex-ante nor an abstract ex-post fashion.
Hence, an important argument in favour of implementing a system of ex-ante legislative review is the provision of a metaphorical ‘health-check’ before proposals can ‘harm’ the public. This would simultaneously also bestow greater credibility to the legislation, possibly leading to a more expedient passage though both Houses.
Whilst avoiding the ex-post infringement of HRA rights by narrowing the pertinence of statutes, this could also help to reduce the caseload of the UK appellate courts, by advocating ‘alternative perspectives and points of criticism’ during the legislative process – a greater number of constitutional rights cases divert the UKSC’s attention from its other primary functions and also heightens costs for taxpayers.
‘Organstreit’ mediatory position:
