Analysis of the Transparency of Ex Ante Constitutional Review in Different Legal Systems

8.3.1 Finland

8.3.1.1 The Finnish Constitutional System in Brief

The current Constitution of Finland (Perustuslaki) entered into force in 2000 and replaced the four constitutional Acts previously in force.

Finnish constitutional culture has the same roots as Swedish constitutional culture as for a long time Finland was under Swedish rule and was allowed to keep its Swedish constitutional arrangements despite becoming part of the Russian Empire in 1809. The principle of parliamentary supremacy has high value both in the Swedish and Finnish constitutional systems. This becomes clear when one analyses the role of the courts and the legal doctrines which emphasise the role of the Parliament (Eduskunta) and the intentions of the legislator (travaux preparatories).^[548]

The importance of constitutional rights came to the fore in the 1990s mainly due to international obligations (the ECHR and the EU). The catalogue of constitutional rights was fully revised and entered into force in 1995, after which the Consti­tution has covered both traditional civil and political rights as well as social and economic rights. In addition, the provisions of fundamental rights were designed to lend themselves to direct application by courts and authorities. Nowadays, in addition to traditional emphasis on legalism and legislative supremacy, Finnish constitutional law also emphasises individual rights and any international obligations relating to them.^[549]

8.3.1.2 Finnish Constitutional Ex Ante Review of Laws:

Perustuslakivaliokunta

Both the emphasis that the Finnish constitutional system places on the principle of parliamentary supremacy and the practical constitutional innovations that arose when Finland was part of the Russian Empire are important in order to understand why the constitutional review is organised as it is in Finland.^[550] Finland has always lacked a distinct constitutional court and, significantly, constitutional review of legislative Acts of Parliament was strictly prohibited until the entry into force of the current Constitution.

Section 74 of the Constitution provides that the primary review mechanism for ensuring the constitutionality of draft legislation, including conformity with interna­tional obligations and EU law, is the ex ante review carried out by the Constitutional Law Committee of Parliament (‘PeV’, Perustuslakivaliokunta).^[552] The PeV is one of the standing parliamentary committees and is composed of Members of Parliament (17 members). Not only is the PeV responsible for the abstract ex ante review of the constitutionality of proposed legislation, but it is also traditionally regarded as being the main authority in respect of constitutional interpretation. The PeV’s work has certain vital characteristics. First, even though the PeV is composed of politicians, the evaluation of the constitutionality of proposed legislation is carried out on a legal basis. Opinions as to the constitutionality of proposed legislation neither vary by reference to individual political parties nor as to whether those parties form part of the opposition or part of the government. In addition, party discipline is not applied in the PeV. Second, external constitutional law experts are regularly consulted by the PeV and, as a rule, their opinions are followed. Furthermore, the final statements made by the PeV relating to the constitutionality of the draft legislation are de facto binding on Parliament. Significantly, when it detects a conflict with the Constitution, the PeV indicates how the bill should be amended in order to remove the conflict. This means that the PeV has a considerable impact on the content of the forthcoming legislation, and therefore its statements may have political effects.^[553]

The members of the PeV are not required to have a legal education (but according to custom the chair of the PeV is a lawyer by education).

The PeV cannot choose which cases it will review. Instead, the government itself regularly recognises the constitutional questions that arise in respect to the various legislative bills prepared, and these are accordingly sent to the PeV for review. There­fore, the PeV hasnot been turned into an instrument of the opposition as has happened, for example, in France.

8.3.1.3 Transparency of Ex Ante Constitutional Review

Openness of Constitutional Argumentation

Formally speaking, the statements given by the PeV focus on whether the legislative bill can be adopted as an ordinary law by a simple majority or whether it has to be enacted through a qualified procedure due to its conflict with the Constitution. In this sense, the PeV’s argumentation focuses on formal issues (i.e. which procedure is to be followed to adopt the legislative bill). However, due to constitutional reforms the current constitutional doctrine is to avoid the use of exceptional enactments, and the aim is also otherwise to guarantee the appropriate protection of rights. Therefore, the PeV tends to demand amendments to legislative bills to achieve conformity with the Constitution and with international obligations binding upon Finland.^[555]

The PeV’s argumentation is generally described as legal rather than political in nature and its statements differ greatly from those of other parliamentary commit­tees.

In general, the PeV’s argumentation does not reflect different political views about the meaning of various constitutional rights and their relevance in terms of other governmental interests. Instead, it tends to be thoroughly dogmatic, often simply paraphrasing the wording of the Constitution, its preparatory works and sets of inter­pretive rules that the PeV has elaborated in earlier statements. Therefore, the argu­mentation focuses on the technicalities and formalities of constitutional law, and substantive review is left aside. The emphasis on formal and technical issues means paying attention, for example, to loose or imprecise formulation of legislative provi­sions. By focusing on formalities and technicalities, the PeV succeeds in avoiding questions relating to values. In this way it usually succeeds in finding unanimity between the members who may represent quite different values and opinions due to the differing parties they belong.^[557]

Voting and dissenting opinions are allowed, but the PeV’s primary aim is to achieve consensus. Voting on the basis of the government/opposition division is seen as highly problematic since doing so would prove that the Finnish method of ex ante constitutional review amounts to an unsuccessful system (a political body masquerading as a guardian of constitutionality).

Analysing the Constitutional Argumentation

I will next analyse a rather recent statement of the PeV, which essentially concerned prisoners’ right to appeal.^[559] A legislative bill introduced the possibility for prison staff to supervise the use of credit cards given to prisoners during their prison term (cash is usually not allowed). Such supervision was justified on the grounds of public safety and preventing crime in prison. The PeV recognised that the suggested supervision of the use of credit cards was rather detailed and could lead to sensitive issues relating, for example, to a person’s health being revealed. It emphasised that information about a person’s health is the essence of what the right to privacy protects and evaluated interference with this right by reference to the principle of proportionality. It concluded that although there was a legitimate aim that justified such interference, the threshold for this was not fulfilled. Therefore, in order to use the ordinary legislative procedure, the PeV required that conditions concerning the need for such interference should be added to the provision.^[560]

Interestingly, the legislative proposal also suggested that prisoners would have no right to appeal to the court against the decision to supervise their credit cards.

In the matter at hand, the PeV’s reasoning is far from open. Essentially, the reasons for safeguarding prisoners’ right to appeal against decisions that interfere with the essence of their privacy rights are missing. In other words, there were significant reasons why the members made a complete U-turn in relation to the draft prepared by the secretariat (who have a high-level legal background) as well as the PeV’s preparatory discussions and the opinions of the legal experts consulted. These reasons are, however, absent from the PeV’s statement.

Openness of the Process

In the Finnish legislative process, plenary sessions by the Parliament are open to the public, whereas the parliamentary committees meet behind closed doors (Section 50(2) of the Constitution). However, the committees may make their meet­ings public in so far as the committees obtain information for their deliberations. In addition, it is specified that the minutes of the committees and other related documents shall be public, unless, for necessary reasons, the Rules of Procedure of Parliament (Eduskunnan tyojarjestys) provide otherwise or the committee decides otherwise on a particular matter. Meetings subject to secrecy are regarded as being a common feature of Nordic parliaments, which emphasise the advantages of trust-based nega­tion in closed settings in which the exchange of opinions can happen easily among committee members. Normally only a condensed version of committee minutes, containing agenda items and related documents, participants and final decisions, is published after a meeting. Only exceptionally when the committee decides to hold public hearings can proceedings be followed by the public.^[563] With the exception of the Finnish Committee for the Future, most of the committees seem reluctant to embrace more transparent legislative processes. Significantly, only once over the last 20 years has the PeV had a public hearing.^[564]

There are no exhaustive rules governing the procedure relating to the Finnish ex ante constitutional review. The Rules of Procedure of Parliament regulate the procedure in general (Sections 32-44). However, there are no specific provisions relating to, for example, expert hearings. Section 37 of the Rules of Procedures of Parliament briefly states that ‘[a] committee may hear experts.’ However, it does not regulate, for example, the impact of the experts’ opinions, on what grounds the experts are chosen and in what circumstances further hearings are arranged. There are unwritten established practices relating to all these questions and, for example, the role of the chair is highly dependent on the approach taken by the person who is acting as chair,^[565] but these rules have no public expression.^[566]

The PeV’s deliberations are mainly based on opinions by constitutional experts and, as a rule, the PeV abides by them. Interestingly, the legal experts have no official status, nor is their key role even mentioned in the Constitution or the Rules of the Procedure of Parliament. Still, it is established practice that the PeV will not depart from a unanimous expert view. If diversity of opinion exists among the experts, the members have more leeway in their interpretation.^[567] The role of the constitutional law experts, who are usually university law professors, has been described in terms of being ‘princes of the empire’ when relating to the system of constitutional review.^[568] The members of the PeV are the formal decision-makers, but the real power rests in the hands of the university law professors as well as the secretary of the PeV.^[569]

The PeV publishes the expert opinions on the Parliament’s website after cases have been closed. In this way the public is fully informed of the opinions of the experts, whose interpretations the PeV regularly follows. However, since the experts are usually heard both in writing and orally, their written opinions may not give a full picture of the case, which is to say that in the oral hearing experts may, for example, either soften their opinions or subject them to a complete U-turn. The minutes of the PeV’s meetings are kept and published on its website. However, they are relatively short and formal and do not, for example, reveal what the experts or members discussed and how their views differed in the oral hearing as compared with their written statements.^[570]

Due to the secrecy of the PeV’s meetings, the participants (members and civil servants) are also not entitled to express their views in public while decisions are still pending, and the public also has no access to documents relating to these unfin­ished matters. Once a decision is made, the public is given access to parliamentary committee documents, which are, in principle, public, as provided for in Section 50(2) of the Constitution. However, under the Rules of Procedure of Parliament, the public availability of such documents may be restricted at a committee’s discretion.^[571]

Openness in Other Ways: How Do Participants Involved in the Review Reflect Transparency?

It is established practice that constitutional law experts consulted by the PeV should not present their views in public while the committee’s decision is still pending. This is an unwritten rule, but experts have traditionally acted accordingly and, therefore, there is very little public discussion on ongoing legislative bills whose constitution­ality has not been yet confirmed.^[572] In addition, the members of the PeV do not usually express their views in public even after a case is closed in the interests of keeping the PeV out of day-to-day politics. Instead, the chair, with the help of the secretary, represents the PeV in public when the issue so requires (e.g. constitutionality of societally important legislative reforms).

Former members of the PeV, as well as secretaries and university professors may write articles and chapters in books on constitutional issues in which they might explain, for example, the working methods of the Finnish ex ante review system.^[573] However, since constitutional law professors are themselves an integral part of the PeV, there is a lack of critical studies relating to the PeV and its interpretations since there are only a few constitutional scholars who can keep a safe distance from the PeV and thus retain credibility and objectivity.^[574]

8.3.2 Sweden

8.3.2.1 The Swedish Constitutional System in Brief

The Swedish Constitution is composed of four constitutional acts, some of which date back more than 200 years. The central constitutional act is the Instrument of Government (IG, Regeringsformen) of 1974. The most recent reform of the IG was in 2010. Popular sovereignty is given strong emphasis in Swedish political and consti­tutional thinking. The very first sentence of Chapter 1, Article 1 of the IG states that ‘[a]ll public power in Sweden proceeds from the people’. Furthermore, Sweden is a unitary state with a parliamentary, democratic system of government. The monarch is the Head of State but has only symbolic powers. The central institution is the unicam­eral Parliament (Riksdag)^[575] The Prime Minister and the Government constitute the centre of executive power.

Fundamental rights are provided for in Chapter 2 of the IG, in the Freedom of Information Act 1949 and the Freedom of Speech Act 1991. The list of fundamental rights of the IG was updated in 1976, 1979 and particularly in 1994 when the ECHR was incorporated into the text. The structure of Chapter 2 is based on the difference between absolute and relative rights. Swedish legal doctrine separates rights into four types: (1) positive freedoms of opinion, (2) negative freedoms of opinion, (3) physical rights and freedoms and (4) rule of law-related procedural guarantees. The list also covers prohibition of discrimination as well as protection of social rights.^[576]

8.3.2.2 Swedish Constitutional Ex Ante Review of Laws: Lagradet

The Swedish constitutional emphasis on the parliamentary system and the sovereignty of the people is indicative of how constitutional review is arranged in Sweden. The Law Council (Lagradet) has been described as being as close to a consti­tutional court as the Swedish parliamentary system would tolerate.^[577] Traditionally, Swedish courts have not been active in reviewing the constitutionality of laws, and this largely explains the Lagradet’s key role in this area.^[578] The Swedish system of constitutional review of laws consists of two main components: scrutiny by the Constitutional Committee of the Parliament (Konstitutionsutskottet) and the expert opinions of the Lagradet. The Lagradet is primarily responsible for the constitutional review of legislative bills. Therefore, this chapter concentrates on the Lagradet and leaves the Konstitutionsutskottet aside.^[579] In addition, in preparing legislation and arranging for open access to public documents and the right to publish them, legisla­tive committees ensure for their part that upcoming legislation does not infringe the Swedish Constitution.^[580] In addition to ex ante constitutional review, ex post review also takes place (Chapter 11, Section 14 of the IG). However, the emphasis is clearly on ex ante review, and ex post review ensures that in specific situations there are no laws in force that infringe the Constitution.

The Lagradet is composed of judges and retired judges of the Supreme Court and the Supreme Administrative Court and is generally defined in legal literature as a judicial body. Its function is, however, defined in Chapter 8, Article 18 of the IG and indicates that it is regarded as forming part of the legislative machinery. Furthermore, it works within a highly political sphere close to the government. The Lagradet gives brief opinions on draft legislation. These opinions are solicited by the government and sometimes by a parliamentary committee. The composition of the Lagradet is regulated by the Act on the Law Council (Lag om Lagradet). Briefly, the Act stipulates that the Lagradet should normally consist of six persons, of whom four should be acting judges of the supreme courts, by which is meant the Supreme Court and the Supreme Administrative Court. The remaining two can be retired judges from the same courts. The Lagradet works mainly in two sections, with three members in each, and in each section there should be at least one member with experience of the Supreme Court and one from the Supreme Administrative Court. Significantly, supreme courts do not allow members who have participated in a review of legislation, as members of the Lagradet later take part in a judgment on the constitutionality of the same law.^[581]

The government should grant a hearing to the Lagradet on legislation regarding to a wide range of subjects and, generally, if the bill is of importance to individuals or the public (Chapter 8, Article 21 of the IG). In the main, the Lagradet handles much of the legislation. The hearing takes place prior to the bill being presented to Parliament. Significantly, the government is never bound by the opinion of the Lagradet, and the fact that the Lagradet has not been heard is no reason for not enacting the law. Consequently, the Lagradet is in this sense only an advisory body, and its opinions have no binding legal effect. However, the Lagradet’s influence is de facto important. One must bear in mind that when a bill is deemed unconstitutional by some of the highest judges in a country it represents a strong argument against legislating in such a way. Significantly, the advice given by the Lagradet is fully disclosed to the public, open to all to peruse and discuss, which facilitates informed public debate on complex legal or constitutional issues. Furthermore, the law enjoys wider legitimacy when it has been accepted by the Lagradet.

The role of the Lagradet’s members is controversial: they review the constitution­ality of legislative bills as jurists, but sometimes the line between law and politics is hard to define. Consequently, the judges who are members of the Lagradet are some­times described as ‘lawyers acting in the roles of politicians’.^[582] It is worth noting that the Lagradet may reject a bill on grounds of unconstitutionality, but the proposal may still be submitted and the Parliament decides in accordance with the bill. This has happened occasionally.^[583]

The Lagradet has two key tasks. First, its technical task is reminiscent of the work of a highly qualified legal editor and entails scrutiny of the internal logic of proposed statutes to ensure that they are drafted in such a way as to produce the intended results and to detect issues that may become problematic in practice. Second, it acts as a constitutional guardian to ensure that no unconstitutional laws are enacted and the principle of legal certainty is respected. This kind of scrutiny comes much closer to the sensitive boundary between law and politics. Therefore, the Lagradet exercises judicial review on an ex ante basis as it gives its opinion on the constitutionality of bills that the government intends to bring before Parliament.^[584]

8.3.2.3 Transparency of Ex Ante Constitutional Review

Openness of the Constitutional Argumentation

The judges who sit on the Lagradet carry out ex ante constitutional reasoning. Signif­icantly, however, the nature of the Lagradet’s legal reasoning has been characterised as being dissimilar to that of the Swedish supreme courts. In legal literature, the Lagradet’s argumentation is generally considered rather short and formal, restricted to legal-technical observations. In addition, in hard cases the constitutional argu­mentation may entail the balancing of interests and be goal-oriented, which means it comes close to political argumentation.^[585]

The members of the Lagradet have recognised the issue of time pressure: some­times the Lagradet would have wanted more time to formulate its opinion.^[586] The openness of legal constitutional argumentation is emphasised when the question at hand falls into the grey zone in which law and politics are closely intertwined. This may arise, for example, when a legislative bill conflicts with a certain established legal principle but the government’s aim in bringing it has wide public support^[587] or when a legislative bill would significantly limit a certain fundamental right for the sake of public order.^[588]

An important aspect of the transparency of preventive constitutional review is that Lagradet members can give dissenting opinions if a consensus is not reached.^[589] The possibility to disagree with the majority enables members to openly express relevant arguments, thus offering a deeper view of the constitutionality aspects of the matter at hand. In practice, however, members seldom dissent. For example, one former member of the Lagradet emphasised that in his period of service no dissenting opinions were given. He did, however, admit that there was one highly important issue in respect of which there was a risk that no consensus could be reached.^[590] One practical reason for the lack of dissenting opinions might be that there are only three members in each section. The unanimity of the statement given by the Lagradet bolsters its credibility and significance. Since the Lagradet’s opinion is always only advisory, unanimity on the part of its members makes it a bit stronger and accordingly more difficult for the Government or Parliament to ignore.^[591]

Analysing the Constitutional Argumentation

I will next analyse the constitutional argumentation used in one of the Lagradet’s hard cases from 2009,^[592] paying particular attention to whether it recognises argu­ments both for and against the chosen interpretation and whether these arguments are balanced against each other to any extent.

The government proposed a bill to abolish certain statutes of limitation in criminal law. The Lagradet pointed out that the prohibition of retroactive criminal law is a fundamental principle relating to the rule of law which is confirmed in the Constitu­tion.^[593] Immediately following this statement, the Lagradet declared that the consti­tutional provision at issue should not be considered to prevent statutes of limitations provisions in criminal law from having retroactive effect. However, as confirmed in the Swedish Criminal Code (1964), it also emphasised that for a long time it had been regarded as a general legal principle that retroactive extension of criminal statute of limitations should not occur.

The Lagradet noted that good reasons are required in order to deviate from the main rule expressed in the Criminal Code. Furthermore, exceptions to this main rule must be applied strictly. The legislative proposal put forward rather far-reaching exceptions to the principle of prohibition of retroactive effectiveness in criminal law, which the Lagradet highlighted as being a ‘debatable development’. The Lagradet pointed out that the proposed exceptions applied to certain international crimes, as well as crimes that involve or may include intentional and lethal violence. At the hearing it was emphasised that in respect of international crimes it is important that Sweden should harmonise its legislation with the Rome Statute of the International Criminal Court. If the limitation periods are not abolished for crimes relating to genocide and serious violations of international criminal law, the application of Swedish law may become statute-barred earlier than under the Rome Statute.

In addition, the government proposed a change in respect to the calculation of limi­tations in relation to the crime of female genital mutilation. As a reason for retroactive application, the government stated that a provision regarding certain sexual offences against children had been given retroactive application on two occasions. It was further pointed out by the Lagradet that the current statute of limitations could mean that cases of genital mutilation are statute-barred before the plaintiff realises or is able to point out that she has been the victim of a crime.

The Lagradet concluded that despite serious concerns relating to matters of legal principle in respect of the legislative proposal at hand, it was, however, able to accept it for the reasons given by the government. Significantly, it went through arguments both for and against the proposed bill. In short, the main argument in favour was that the international commitments and the removal of the limitation periods would concern serious crimes (e.g. genocide, sexual offences against children). The arguments against it related to the principle of prohibition of retroactive criminal law, which this proposal to a large extent set aside. The Lagradet did not balance these arguments against each other but simply stated the conflicting sides of the matter. The constitutional argumentation put forward would have been more acceptable if the values behind these conflicting arguments had been balanced and if the substance of the proposal had accordingly been approached from a proportionality perspective.

Openness of the Process

Although the Lagradet is composed of either current or retired judges, its proceedings are not subject to the same levels of confidentiality as court proceedings. When giving its opinions on the constitutionality of laws, the Lagradet is considered as a state authority, and consequently, the legislation on press freedom applies to its work, which means that the public has access to its documents.^[594] As an advisory body within the legislative process, it cannot formally be compared to courts. Consequently, general rules relating to court proceedings do not apply. In addition to the fact that the Lagradet’s members are not subject to a secrecy obligation, the fact that they only give legal advice instead of deciding cases means that they are freer to organise their work and conduct judicial deliberation than the courts.^[595]

Interestingly, it is the courts, not the Government or Parliament, that select the members of the Lagradet. Membership is rotated so that each judge serves on the Lagradet. Additional members can be appointed for short periods when major legis­lation is being enacted and, consequently, additional sections can be temporarily created. In addition, the Lagradet can be reduced to only one section during quieter periods. Formally speaking, the Government takes these decisions, but in practice it is the most senior member of the Lagradet who either requests the appointment of addi­tional members or informs the Government of a lack of work to which the Government will respond. Since Lagradet members are officially appointed by the Government (whose bills it also reviews), the appointment procedure has been criticised for a lack of transparency.^[596]

Any bill intended for Parliament that needs to be examined by the Lagradet will be sent to its office. The relevant public official will then be called to the Lagradet to present the bill orally to the section responsible for dealing with it and will respond to any questions. This may take a number of days when large legislative enactments are involved. Significantly, this phase is done only orally and no detailed minutes (e.g. as to what questions were asked and what answers were given) are published.^[597] Therefore, the public has little or no knowledge of what was discussed at that point.

In the bill it places before Parliament, the Government will comment on the Lagradet’s opinion. It often notes that the Lagradet had nothing to say. Alternatively, where the Lagradet has raised criticisms, the Government will want either to let it be known that it has changed its proposal in accordance with the Lagradet’s opinion or it will argue for its own view more substantively.^[598] The governmental practice of openly responding to the public opinion of the Lagradet enhances the transparency of the review.

One distinctive feature of the Lagradet’s process is that some of its comments are never recorded in the official minutes of proceedings or its opinion and are thus not made public. These comments (blakriteanmarkningar) may concern spelling corrections or other minor textual faults. This practice is of course useful but has recently been criticised by a former member of the Lagradet, as it has transpired that these comments—often made in a special paper and given to the relevant government official—are not retained by the government and thus are not publicly available. Some have argued that this practice may actually conflict with the constitutional provisions on access to public documents. All in all, this means that some critical comments never come to public notice and that the decision as to whether to make an ‘important’ or a ‘minor’ comment is in the hands of the Lagradet itself. This offers the Lagradet a degree of discretion as to what is or is not made public, even if it certainly saves individual governmental officials from public embarrassment.^[599]

Openness in Other Ways: How Do Participants Involved in the Review Reflect Transparency?

As regards the transparency of the Lagradet’s work, it is significant that its previous and present members often publish academic writings concerning their Lagradet work, thus contributing both to constitutional research and societal discussion. In these writings, they are rather open about the Lagradet’s working methods in general and also comment on and explain the background and factors relating to specific cases.^[600] Moreover, the members of the Lagradet have openly discussed whether Lagradet has political interests.^[601] The Lagradet has been criticised for being too tolerant of and passive towards legislative bills that have attracted public condem­nation.^[602] The members have responded by explaining the process in great detail (how legislative bills are represented, what kinds of questions are asked, how the presenting official responds to critical questions etc.) and by describing internal working methods (how the responsibilities are divided in each case and how the pieces of the draft are delivered and combined).^[603]

The members of the Lagradet have confirmed that some members are rather passive and have limited input in constitutional review, while others have strong opinions and interests relating, for example, to the principle of legal certainty. Some­times all three members of the Lagradet’s section are rather passive, and this shows in the outcome: the Lagradet had nothing to say about the proposal. In this sense, the Lagradet’s scrutiny is a bit of a lottery and depends on its membership at any given time.^[604] The Lagradet’s more critical attitude to legislative bills may not always be reflected in its opinions.^[605]

The work of the Lagradet is heavily influenced by developments in legal scholar­ship.^[606] It may be the case that the freedom that a member of the Lagradet generally feels makes her more inclined to publicly discuss her own and others’ contributions to it.^[607]

8.3.3 France

8.3.3.1 The French Constitutional System in Brief

The French Constitution (of the Fifth Republic) was adopted in 1958 and the aim, at the level of principle, was to ensure the primacy of the executive. Therefore, the French constitutional system can be described as presidential, meaning that the President of the Republic has had relatively strong powers.^[608] The constitutional reform of 2008, however, marked a complete and final break from the constitutional past. In this reform, the powers of both chambers of the Parliament and the rights of the individuals were strengthened.^[609] Legislative supremacy has been ideologically propped up by the Rousseauian notion of legislation as the untouchable expression of the General Will. This was concretised in the fact that once law had been promulgated it could not be challenged or made subject to any juridical review other than by Parliament itself.^[610]

The protection of fundamental rights was not the main concern in the Consti­tution of the Fifth Republic, and the rise in the importance of this issue at a later stage in French constitutional law is largely attributable to the ECHR’s influence.^[611] In essence, fundamental rights rarely feature in the French Constitution but are to be found in the Preamble to the Constitution of 1958, which incorporates the 1789 Declaration of the Rights of Man and of the Citizen, the Preamble to the Constitution of 1946 and the 2004 Environmental Charter.^[612] Even though they are not formally incorporated in the Constitution, these rights have a constitutional ranking. All these sources of fundamental rights were incorporated into what is known as the bloc de constitutionnalite by the Constitutional Council (Conseil constitutionnel).^[613] Since then, the Conseil has constantly referred to an evolutionary and ‘non-crystallised’ conception of the Constitution.^[614] Interestingly, it has tended to develop fundamental rights as much as possible by giving the broadest feasible interpretation to norms and provisions contained either in the Declaration of 1789 or in the Preamble to the Constitution of 1946. Therefore, constitutional jurisdiction relies on a set of norms with external references other than the Constitution.^[615] In addition, interna­tional human rights treaties are dealt with separately, meaning that they are not part of the bloc de constitutionnalite and do not have constitutional value. Instead, their value is treaty-based.^[616]

8.3.3.2 French Constitutional Ex Ante Review of Laws: Conseil Constitutionnel

The French constitutional review differs greatly from the system adopted in neigh­bouring countries, where the courts are central actors in ex post constitutional review. Frankly, the French attitude towards judicial review has been rather hostile.^[617] Signif­icantly, the French constitutional review concerns formal legislation which has been adopted by both chambers of Parliament but has not yet entered into force. In addi­tion, the body that reviews the constitutionality of laws is not a traditional court.^[618] The French abstract and a priori model of constitutional review was introduced as late as 1958. The Conseil makes decisions in regard to entire statutes and makes the final decision as to their constitutionality. This amounts to a power of veto over legislation.^[619]

Since the constitutional reform of July 2008, the Conseil has exercised its powers of constitutional review on both an ex ante and ex post basis. Prior to the reform, constitutional review was done purely on an ex ante basis, did not entail any system­atic assessment of all legislation passed by Parliament and was accordingly felt to be inadequate. Finally, the constitutional reform of July 2008 introduced the QPC proce­dure (questionprioritaire de constitutionnalite). This is a priority preliminary ruling procedure in regard to constitutionality and has brought about significant change in the method of constitutional review used.^[620] By way of background, the Conseil had previously proclaimed itself the only body able to exercise constitutional review. The introduction of the QPC confirmed this, indicating that ordinary courts do not carry out this type of review. Article 61-1 of the Constitution provides that if, during court proceedings, it is argued that a legislative provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Court of Cassation (Cour de cassation) or the Council of State (Conseil d’Etat) to the Conseil for a ruling on the issue at hand.

The Conseil is institutionally separate from the ordinary courts and administrative courts. Initially, it was created to keep the Parliament of the Fifth Republic in check and was therefore primarily designed to regulate the jurisdictional divide between Parliament and Government. Over time, however, its role has changed greatly.^[621] It used to be debated whether the Conseil is part of the judiciary, since its work is to carry out judicial review of the constitutionality of statutes and treaties, as well as to monitor the integrity of national elections. When the Conseil was first set up, it was clear that it was not a court. However, nowadays its decisions bind every single court, even the supreme court in civil and criminal matters, and the highest administrative judicial body. In addition, the latest constitutional reform established the QPC procedure, which made it possible for individuals—in certain limited circumstances—to bring a case before the Conseil. Consequently, there is no longer any real debate as to whether the Conseil is a judicial body. Instead, its judicial character is complex because the nomination of its members, who are not required to have a legal education, is partly political in nature.^[622]

The Conseil is the only body entitled to exercise judicial review of the constitu­tionality of Acts of Parliament as well as international treaties and, to some extent, EU directives. Other superior courts—the Cour de cassation and the Conseil d’Etat—are not entitled to review the constitutionality of laws. However, particularly after the entry into force of the QPC procedure, constitutional interpretation also involves the Cour de cassation and the Conseil d’Etat.^[623] In addition, the Conseil does not review the conformity of legislative acts with international treaties. Only the ordinary and administrative courts (under the control of the Conseil d’Etat and Cour de Cassation) are entitled to do so. This is referred to as a ‘conventionality’ review.^[624] International treaties often involve issues that are closely linked with constitutional issues (e.g. human rights). Since treaties are supposed to be compatible with the Constitution, these two highest courts exercise a sort of indirect constitutional review.^[625]

The French constitutional review system has been and still is rather political in nature in many ways. Preventive review may be either optional or compulsory. As regards optional constitutional review, ordinary laws, statutes and international treaties may initially be referred to the Conseil before promulgation or ratification by only four individuals: the President of the Republic, the Prime Minister and the presidents of each house. As a consequence, only a small number of texts were ever reviewed in this way, since they were infrequently referred to the four office holders listed above. However, nowadays 60 deputies or 60 senators can collectively refer bills or international treaties to the Conseil. In fact, the opposition is always able to muster enough members to refer a text in this way, and therefore, such review has a political flavour.^[626] When it comes to compulsory constitutional review, all ‘organic’ legislation must be examined by the Conseil before it can enter into force. In the French legal system organic laws are statutes adopted under a special procedure framed by Article 46 of the Constitution. At least 15 days must pass between the introduction of the bill and debate and voting on it. Moreover, if, after the usual vote by the two chambers, the National Assembly is given the final say, it can only accept the bill with an absolute majority of its members. They cannot be promulgated until the Conseil has declared that they are in conformity with the Constitution.^[627]

Appointment of the members of the Conseil also has another political dimen­sion. By way of background, the Conseil was not originally intended to undertake full constitutional review. Consequently, it does not comprise judges but members, who fall into two categories: ordinary members and members as of right (membres de droit). The nine ordinary members are appointed for a nine-year non-renewable term. Three are appointed by the President of the Republic, three are appointed by the Speaker of the National Assembly and the other three by the Speaker of the Senate (the upper chamber). The typical ordinary member is a former minister or MP, usually in the twilight of her political career, who is rewarded with a stable and well-paid job for her loyalty to the appointing authority. Judges from the ordinary courts also feature regularly in appointees lists. Academics, however, are rarely invited to sit on the Conseil.^[628] Members as of right owe their positions to the constitutional provi­sion under which all former presidents of the Republic are members as of right. This is seen as highly problematic.^[629] Some former presidents have decided to sit on the Conseil, and the presence of former presidents has aroused suspicions of politici- sation.^[630] Furthermore, the absence of any professional requirements to become a member of the Conseil may undermine the legitimacy of the whole institution.^[631] Surprisingly, however, the general public is well disposed towards the members of the Conseil (Conseil members are known as ‘les sages’). Significantly, the President of the Republic appoints the President of the Conseil, who has several powers. She does the following: casts the deciding vote if the Conseil is equally divided on a decision, appoints the General Secretary of the Conseil, designates the rapporteur in each case, chairs debates and represents the institution.^[632]

Political pressure on the Conseil is relatively high. Its decisions are final and binding and unconstitutional legislation cannot enter into force. Consequently, a reference to the Conseil is regarded as the last obstacle that the opposition can place in the path of a bill. The nature of the Conseil’s composition, as described above, make it highly vulnerable to politicisation. One might ask how, given the danger of politicisation, it can be expected to produce objective judicial decisions. In this light, the openness of the legal argumentation and the process have self-evident value.

8.3.3.3 Transparency of Ex Ante Constitutional Review

Openness of the Constitutional Argumentation

Section 20 of the Rules of Procedure briefly states that the Conseil must give reasons for its decision. The Conseil’s constitutional interpretation has been dynamic and creative and it has thereby dramatically raised the standards of legislative review. It has granted constitutional status to a wide range of rights and freedoms. As a result, it protects all rights and freedoms common to constitutions in general (e.g. individual freedom, human dignity, religious freedoms, expression rights, equality, protection of private and family life).^[633] In addition to these first-generation rights, it has recognised many social and economic rights (e.g. the right to work, right to strike, right to healthcare, right to social security). Third-generation rights have also been slowly recognised by the Conseil.^[634] It has also asserted the existence of new rights, such as the principle of independence of university professors.^[635] However, some of its decisions with regard to the protection of human rights and freedoms are open to criticism. In this respect, the police custody saga serves as an example. Here, the Conseil declared some important challenged provisions to be unconstitutional, while simultaneously stating that its finding of unconstitutionality would only take effect one year later.^[636] This position was not adopted by the Cour de Cassation.^[637] Thus it can be said that the Conseil, unlike some of its European counterparts, frequently exercises excessive judicial restraint.^[638]

In its early years the Conseil’s argumentation reflected the distinctive, laconic opinion-writing style of the French high courts. Constitutional opinions were modelled on the style adopted by the Cour de Cassation and the Conseil d’Etat. However, in response to criticism the Conseil began to alter its style of reasoning. Particularly after 1980, its opinions became longer and the reasoning contained in them developed in many ways. Consequently, while there is an undeniable family resemblance in terms of style and general structure in the opinions issued by all three bodies—evidenced particularly by the one sentence, pseudo-syllogistic scheme that the Conseil decisions continue to follow—the Conseil’s opinions diverge from those of the two supreme courts in various ways. The first set of differences concerns textual characteristics, such as a tendency toward prolixity. The second relates to major differences as to the institutional setup in which opinions are formulated. One such difference is the absence, in proceedings before the Conseil, of a figure comparable to the advocate general or rapporteur public.^[639]

The Conseil did not historically tend to cite its own earlier decisions but has started to refer to them in its most recent decisions.^[640] This implies that its argumentation is starting to acquire greater doctrinal sophistication. Furthermore, it does not refer to international law material, such as decisions by foreign or supranational courts, to non-legal arguments or to the canons of constitutional law interpretation.^[641] Due to the traditional gnomic style of reasoning and the prohibition on dissenting opinions, even constitutional law scholars at times had some difficulty in understanding the rationale of the Conseil’s decisions. Nowadays, its decisions are accompanied by a press release and a quasi-official commentary, which is made available on its website. These documents are directed to journalists and other laypersons in order for them to make sense of what the Conseil has decided. Therefore, the Conseil now takes greater pains to ensure that the public is informed on its decisions.^[642]

Analysing the Constitutional Argumentation

We will now look at a 2012 decision concerning the constitutional review of a legisla­tive bill in order to ascertain whether the argumentation can be described as aiming to achieve openness. The bill for the Identity Protection Act was submitted to the Conseil by members of the Parliament and senators who found the provisions of Arti­cles 5 and 10 of the Act unconstitutional. Article 5 provided for the establishment of a database containing personal data, including, in addition to the marital status and residence of the holder, their height, eye colour, fingerprints and photograph. The applicants argued that the establishment of a biometric database covering almost all of the French population, the characteristics of which enable a person to be identified on the basis of their fingerprints, amounted to an unconstitutional breach of the right to respect for private life. Furthermore, Article 10 of the Act permitted the informa­tion contained in this database to be consulted for administrative purposes or by the investigating police without any legal guarantees against the risk of arbitrary action.

The Conseil referred first to Article 34 of the Constitution, which provides gener­ally that an act shall specify the rules relating to the fundamental guarantees to be afforded to citizens. Consequently, the Parliament when acting within the bounds of its competence must ensure that a balance is struck between the safeguarding of public order and bringing offenders to justice and respect for other rights and freedoms protected under constitutional law. It then referred to Article 2 of the 1789 Declaration of the Rights of Man and the Citizen, which implies the right to respect for private life, thus highlighting that the collection, registration, conserva­tion, consultation and communication of personal data must be justified on grounds of general interest and implemented in an adequate manner by taking the principle of proportionality into account.^[643]

The Conseil briefly stated that interference with the privacy rights could be justi­fied on the grounds of general interest (the intention was to improve efficiency in the fight against fraud). However, the proportionality of such interference was the key issue. The Conseil paid attention to the fact that the biometric database also included fingerprints, which can be compared with physical traces left involuntarily by an individual or collected unbeknown to him or her, thus making the collected data particularly sensitive. Furthermore, the Act enabled the database to be consulted or viewed not only in relation to the issue or renewal of identity and travel documents or to verify the identity of the holder of such a document, but also for other purposes of an administrative nature or by the police. Consequently, due to the nature of the data registered, the scope of these proceedings and the conditions under which it could be consulted, the Conseil concluded that Articles 5 and 10 violated the right to respect for privacy in a manner that could not be regarded as proportionate to the goal pursued. Therefore, both Articles 5 and 10 were ruled unconstitutional.^[644]

In its argumentation, the Conseil took both sides into account: interference with the right to privacy could be justified by a legitimate aim, but the interference contem­plated was not proportionate. It presented detailed argumentation as to the areas in which the proposed interference would not be proportionate and offered rather prac­tical arguments relating, for example, to the sensitiveness of the collected data. The balancing exercise was, however, done in one sentence: the right to respect for privacy is violated in a manner which cannot be regarded as proportionate to the goal pursued.

Openness of the Process

As regards the openness of the procedure, the jurisprudence constitutes the only public record of the Conseil’s proceedings. Things have gradually changed, and for example, the appointing procedure has become more open and transparent compared to earlier times when appointments could not be set aside in any form.^[645]

In the process of the appointment of ordinary members to the Conseil, the names of the nominees are publicly disclosed and the ordinary members must be approved by the legislative committees. Article 56 of the Constitution specifies that appointments made by the President of each House shall be submitted for the opinion solely of the relevant standing committee in that House. Furthermore, the President of the Republic shall not make an appointment when the sum of the negative votes in each committee represents at least three-fifths of the votes cast by the two committees (Article 13 of the Constitution). Therefore, the appointing procedure relating to the ordinary members of the Conseil is relatively open and requires approval by the Parliament.^[646]

Since the members of the Conseil do not require a legal education, its Secretary General (Le secretaire general) has an important role.^[647] By custom the Secretary General has high level legal practice experience; for example, through having been a member of the highest administrative court. The Secretary General provides assis­tance to the President and other members of the Conseil in the preparation of its decisions.^[648] The process starts when a matter comes before the Conseil and the President of the Conseil appoints a rapporteur who is helped and advised by the Secretary General and the Legal Service of the Conseil. Significantly, it has also been pointed out that the rapporteur is also to a certain extent under the supervision of the Secretary General and the Legal Service.^[649] The process is carried out mainly in writing. The rapporteur draws up a draft decision, which works as a basis for the Conseil’s judicial deliberations, which are conducted in secret. Consequently, the minutes of the Conseil’s meetings are also kept secret, and thus the public has no access to documents relating to its ex ante review proceedings. As such, the precise roles of the rapporteur, Secretary General and the Legal Services remain unclear.

In 2008 researchers were given access to the Conseil’s archives, with a 25-year time lag. This made it possible to publish the most important deliberations up to 1983, which reveal that the members of the Conseil do, in fact, disagree (or have done in the past).^[650]

At the outset, the Conseil must be prompt in its work because it must examine the whole bill within one month (Article 61, third paragraph of the French Constitu­tion).^[651] In addition, under the rules of procedure, Conseil members are prohibited from taking public stances on issues that have been or may be the object of a Conseil decision, or giving consultations on such matters.^[652] In addition, in order to safe­guard the members’ independence and that of the Conseil, deliberations and votes are not made public. Therefore, Conseil members are not allowed to state in public, for example, how the votes went or what kinds of argument were presented.^[653]

Openness in Other Ways: How Do Participants Involved in the Review Reflect Transparency?

Conseil members may not give public statements as to arguments used in the Conseil or its voting. However, some retiring members have published details of their experi­ences as Conseil members.^[654] However, internal differences are not usually revealed in the Conseil’s official communications.

The Conseil maintains close links with constitutional law scholars and even edits one of the most prominent constitutional law journals, the Cahier du Conseil consti­tutional. Furthermore, every year the Conseil awards prises for monographs and doctoral dissertations on constitutional law. Significantly, constitutional law scholars rarely express criticism of the Conseil or its decisions and argumentation.^[655] This is easily explained by how leading constitutional law scholars are either former Conseil members or former Secretary Generals.^[656] Therefore, constitutional law scholars have the same aim as the Conseil: that of increasing the significance of constitu­tional law issues (and their own role in its interpretation) in the French legal order. French legal literature focuses only to a limited extent on the theory of constitutional interpretation in general.^[657] However, now that constitutional law litigation forms an integral part of QPC proceedings, constitutional law scholars may begin to take up a more critical stance towards, for example, the Conseil’s legal argumentation.

8.4