Hierarchy of norms

The discussion thus far has focused on the conceptual foundations and legitimacy of judicial review in the UK and EU. We now turn to the status of the principles of judicial review within their respective legal regimes, and their place within the hierarchy of norms.

In UK law, the principles of judicial review can be used to invalidate secondary norms and to interpret primary legislation, but they cannot be used to invalidate the latter. This is true even in relation to rights-based review pursuant to the HRA 1998, since legislation that is incompatible with Convention rights is not invali­dated, but is subject to a declaration of incompatibility that does not affect its legal status. The government has, it is true, complied with such declarations of incom­patibility, thereby reducing the difference between classic constitutional review of the US or German variety and the softer form that exists in the UK.^[617] This does not alter the fact that the courts under the HRA 1998 do not formally invalidate legislation, nor does it alter the fact that the other grounds of judicial review can only be used to invalidate secondary norms and interpret primary legislation.

In EU law the position is different. The general principles of law sit below the Treaties, but above all else. They can therefore be used to interpret and invalidate EU legislative acts, delegated acts and implementing acts.^[618] They can also be used to challenge primary legislation in Member States where the subject matter falls within the scope of EU law. It is important to emphasize that this status attaches to all general principles of law, not merely to that part dealing with fundamental rights.

has nothing to do with fundamental rights. Where the clash is between a general principle of law and national law, the ECJ does not declare the offending national norm void, but finds it inconsistent with EU law, with the result that national institutions including courts have an obligation to remove the inconsistency pur­suant to the EU supremacy principle.

It is tempting to seek easy rationalizations for the difference. Consider the fol­lowing explanation. It might be argued that the principles of UK judicial review could not be superior to primary legislation, albeit below constitutional norms, because there is no written constitution. It might be argued further that the con­trasting status of general principles of EU law is to be explained simply by way of domestic analogy with French law, in which the principes generaux du droit sit above legislation but below the Constitution. The temptation to rationalize the law in this manner should nonetheless be resisted, because both parts of the preceding formulation are wrong, or at the very least incomplete.

The error is most obvious in relation to UK law. The mere fact that we have an unwritten constitution does not per se preclude principles of judicial review from being above primary legislation. It would be perfectly possible to imagine an unwritten constitution in which this was so. The rationale for the position in the UK is not because we have an unwritten constitution, but because its dominant principle is the sovereignty of Parliament, the corollary being that UK principles of judicial review may serve as interpretive guides concerning primary legislation, but cannot lead to its invalidation.

The error is less obvious in relation to EU law. The explanation for the status accorded to general principles in EU law cannot, however, rest per se on the anal­ogy with principes generaux du droit in France. At the inception of the EEC the principes generaux du droit were not fully developed in French law. More impor­tantly the Conseil d'Etat could not invalidate primary legislation, and the Conseil Constitutionnel had not yet undergone its (re-)birth. The renaissance of the Conseil Constitutionnel in the 1970s facilitated challenge to primary legislation, but only ex ante and there was no possibility for challenge ex post prior to the recent constitutional reforms in France.^[619]

Thus any idea that the status accorded to general principles in EU law was somehow pre-ordained by domestic analogy is flawed. The reality was, rather, that the status accorded to such principles was a choice made by the ECJ, which was facilitated by the wording of what is now art 263 TFEU. Thus, once the ECJ interpreted the magic phrase ‘any rule of law relating to their application' as the grounding for general principles of law, it was an easy step to place them above legislative acts in the hierarchy or norms, since art 263(1) TFEU was predicated on such acts being susceptible to judicial review.

This very wording of art 263(1) in rendering EU legislative acts susceptible to judicial review should, moreover, be viewed in the historical context sketched

194 Accountability and Judicial Review in the UK and EU: Central Precepts above. At the inception of the EEC the legislative process was dominated by the Commission and Council. It was imperfectly democratic to say the least; hence the idea that judicial review in accordance with general principles of law should sit ‘above’ norms made in this manner could be accepted with relative equanim­ity. The structural relationship between arts 263(1) and (2) has however remained unchanged in the subsequent years, notwithstanding the significant development and democratization of the EU legislative process.

The status accorded to general principles of law gives the EU courts a very pow­erful tool to shape the emerging EU legal and political order, since they are the ulti­mate deciders as to whether EU legislation is consonant with the ever-expanding list of general principles of EU law.

It might be argued, as intimated above, that the status of general principles of law in the hierarchy of norms is legitimate because the wording of art 263(1) is expressly predicated on legislative acts being reviewable in accordance with the cri­teria in art 263(2). It could be argued further that the framers of the Lisbon Treaty were fully mindful of review for compliance with general principles of law, which had existed for over forty years, and were content that the new Lisbon category of legislative act should be subject to this same regime. There is force in this view. There is nonetheless scant, if any, evidence from the deliberations that led to the Constitutional Treaty^[620] to suggest that thought was given to this issue. There was discussion of the hierarchy of norms, which led to the Lisbon distinctions between legislative, delegated and implementing acts. There is, however, no indication of considered reflection on the status of general principles of law within the hierarchy of norms in a regime where the passage of legislative acts has some real democratic legitimacy.^[621]

It might alternatively be contended that the status of general principles of law is justified in normative terms. A proponent of this view would maintain that the placing of general principles of law below the Treaties, but above other EU norms, is correct in normative terms. This argument must, however, be sustained, not merely stated as if self-evidently correct.

source-based legitimation for judicial articulation of general principles of law. The normative premise might alternatively be a non-positivist theory of law, in which it was accepted as legitimate for courts to create general principles of law that bind the legislature, irrespective of the precise wording of art 263 in this regard.

It might be maintained as a third type of response that the distinction between the UK and EU in terms of the status accorded to the principles of judicial review is less dramatic than might be thought, because the line between invalidation and interpretation is not clear cut. There is, so it might be argued, ample evidence that courts which cannot invalidate primary legislation can nonetheless achieve much the same ends through strong principles of interpretation. The principle of legality used by UK courts, whereby they refuse to read primary legislation as invasive of fundamental rights in the absence of clear and unequivocal words showing that the legislature had understood the implications of its action, exemplifies what can be achieved through principles of interpretation.^[622] The preceding argument might be further reinforced by reference to intensity of review. A legal system such as the EU that allows legislation to be invalidated for non-compliance with general principles can moderate the effect of this through intensity of review. Thus, for ex­ample, legislative acts may be invalidated for infringement of proportionality, but the claimant will have to show manifest disproportionality for this to occur where the legislative act encapsulates complex discretionary assessments involving social, political or economic choice. There is force in the previous arguments.

The credentials underlying any particular accountability mechanism must nec­essarily include analysis not only of the legitimacy of the detailed precepts used when holding others to account, but also of their status within the legal order as a whole. The placing of such precepts within the hierarchy of norms reflects a choice as to their status as compared to other legal norms. That choice has been made differently in the UK and the EU and while one might seek to diminish the differ­ence in the manner considered above, it remains of significance, in both practical and normative terms.

196 Accountability and Judicial Review in the UK and EU: Central Precepts

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