Rights
The protection of rights of the kind commonly found in a Bill of Rights is certainly not the only focus of judicial review. There are many cases that come before the courts in all legal systems that do not entail any such right.
The way in which rights-based cases are treated is nonetheless instructive when thinking more generally about accountability secured through judicial means, and when considering the central precepts of any system of judicial review. We have already touched on this issue in the preceding discussion when considering the role of fundamental rights within the regime of EU judicial review, and when analysing general principles in relation to the hierarchy of norms. It is nonetheless important to address the issue directly. There are, as will be seen, similarities and differences between UK and EU law in this respect.We can begin with the similarities. Prior to 1998, the UK courts made it clear that fundamental rights were embedded in the common law and would be protected by the UK courts in judicial review actions.[623] The advent of the HRA 1998 nonetheless transformed judicial review in the UK. There was a significant expansion in the number of cases that raise rights-based arguments in the context of judicial review actions. The lesson from this is that enshrining fundamental rights in statutory form had a marked impact on the extent to which they would be relied on in legal actions. This is not surprising. Claimants are likely to feel on more secure foundations when relying on a statute that clearly lists rights and has received Parliament’s imprimatur.
The pattern was similar in the EU. The ECJ engaged in fundamental rights review since the 1970s. The number of such cases was nonetheless limited. Claimants, Advocates-General, the CFI and more recently the ECJ relied on the EU Charter of Fundamental Rights[624] for interpretive guidance even prior to the Lisbon Treaty.
The fact that the Charter is now rendered legally binding by the Lisbon Treaty[625] is likely to increase the profile of rights-based claims within judicial review actions. Claimants can point to a clear set of rights, which are legally binding on EU institutions and Member States when they act within the sphere of EU law. The profile of judicial review cases is therefore likely to change in the EU in a manner that bears analogy to the development that occurred in the UK. The change may indeed be greater because of the very breadth of the Charter. The HRA 1998 incorporated rights from the European Convention on Human Rights. The list of rights in the ECHR is considerably narrower than that in the Charter, and that is so notwithstanding the fact that some Charter provisions are deemed to be principles rather than rights.38 The very breadth of the Charter provisions will therefore fuel claims testing their meaning, scope and interpretation. The number of complex rights-based claims is likely to increase because of other changes madeby the Lisbon Treaty. It brought the Area of Freedom, Security and Justice (AFSJ) within the general framework of EU law, including judicial control. Many AFSJ measures involve conflicts with classic civil and political rights, and claimants will increasingly seek recourse to EU courts to resolve these complex issues. The possibility of bringing such actions has been rendered somewhat easier by changes made in the Lisbon Treaty to the rules for locus standi for direct actions.[626]
There are two related differences in relation to the treatment of rights within the schema of review in the UK and EU. The first was touched on in the previous discussion, which is the placing of rights-based protections within the hierarchy of norms. The difference between UK and EU law was considered above. Review for compliance with fundamental rights can be used to interpret primary law in the UK, whereas it can be employed to interpret and invalidate EU legislative acts, although this should be read subject to the earlier discussion as to how this distinction might be qualified.
The difference has become more marked after the Lisbon Treaty. This is because the EU Charter now has a status distinct even from other general principles of law, having the same legal value as the constituent Treaties themselves.[627] Detailed discussion of the implications that this might have is beyond the scope of this chapter. Suffice it to say that even prior to the Lisbon Treaty the ECJ's fundamental rights jurisprudence could be used in relation to Treaty articles, in order to interpret them in the manner that was most compatible with protected rights, and Member States could only formally alter the content/ application of a general principle of law through Treaty amendment. The elevation of the Charter to the same status as the constituent Treaties is nonetheless at the very least symbolically significant.The second difference between the UK and EU in relation to rights concerns the way in which this exercise of judicial power is viewed within the respective systems. We have already noted the common law preoccupation with the legitimacy of constitutional and non-constitutional review. The exercise of rights-based review in the EU has, by way of contrast, been viewed with relative equanimity.[628] This was in part because the counter-majoritarian difficulty that lies at the heart of rights-based constitutional review was not initially relevant in the EU, given the nature of the initial decision-making process in which power was divided between Commission and Council to the exclusion of the Assembly. It was in part because civilian legal systems dominate within the EU and those trained in such systems are generally less troubled by judicial invalidation of primary legislation pursuant to constitutional rights-based guarantees than their common law counterparts. This point should be kept in perspective. It would be wrong to imagine that civilian systems make no accommodation for legislative choice when undertaking rights-based constitutional review.
They have done so through variable proportionality review,198 Accountability and Judicial Review in the UK and EU: Central Precepts the intensity of which can alter depending on the nature of the right,[629] and this same technique is evident in ECJ case law.[630]
It is nonetheless still true that concern about the legitimacy of constitutional review predicated on the anti-majoritarian argument, combined with the fact of disagreement about the meaning and application of constitutional rights, does not have the same academic or judicial prominence in civilian regimes. The complex rationale for this difference between common law and civilian systems cannot be explored here. Suffice it to say that the rationale is eclectic, drawing on diverse factors including the background positivist legal theory that informs much civilian adjudication and the relative trust placed in courts and legislatures.
It remains to be seen whether amendments made by the Lisbon Treaty herald any change on this issue in the EU. The legislative acts challenged before the Union courts will normally be made via the ordinary legislative procedure, with input from the Commission, Council and European Parliament. The extension of the ordinary legislative procedure, and the symbolic change in name from that of co-decision, has strengthened the European Parliament’s role in the EU political order and further enhanced the democratic legitimacy of EU legislation. The interpretation of Charter rights will be contestable. There will inevitably be cases in which the EU courts substitute their view for that of the legislature on the meaning and interpretation of such a right. The counter-majoritarian aspect of constitutional review and the prevalence of disagreement about the meaning of constitutional rights will be more apparent than hitherto.
It may be that the quiet equanimity that has attended EU constitutional review hitherto will continue in the future. The Council and European Parliament may accept such judicial decisions, on the assumption that courts are ‘naturally’ entitled to the last word on such matters.
Concern about the legitimacy of constitutional review may continue to be regarded as primarily a common law preoccupation. This may be so; time will tell. It is, however, also possible that the perennial issue about the balance between the rule of law and democracy, which has been long debated in common law regimes, will become a live issue in the EU in a way that it has not done hitherto. We should at the very least be aware of the changed circumstances in which fundamental rights review will take place under the Lisbon Treaty.The credentials underlying any particular accountability mechanism include analysis of the status accorded to the detailed precepts used when holding others to account. This issue has been especially contentious in common law regimes in discussion of rights-based constitutional review, where the courts use fundamental rights as the reason for invalidating primary legislation. It has also featured in the
discourse about review of primary legislation under the HRA 1998, even though the UK courts cannot formally invalidate primary legislation that is inconsistent with the rights protected by that Act. The EU has for the reasons adumbrated above largely escaped such controversy, but whether it continues to do so remains to be seen.
F.