Two Politically Enforced Constitutions: The UK and the Netherlands
Although both the Dutch and the British constitution are, nowadays, acquainted with the concept of judicial review of legislation, their notions of the proper role of the courts are very different from the examples discussed above.
In the previous paragraph, we identified the way in which courts regard the constitution, as either a political or a predominantly legal phenomenon, as what crucially separate politically from judicially enforced constitutions. How should we assess the Dutch and the UK constitution in this respect?4.1 United Kingdom
To begin with, both constitutions traditionally express reluctance, if not downright scepticism, about the political role of the courts. In the UK, this reluctance is directly linked to one of the two pillars of British constitutionalism, the doctrine of parliamentary sovereignty (the other being the rule of law). According to orthodox Diceyan doctrine, sovereignty of Parliament holds that ‘Parliament has the right to make or unmake any law whatever’ and that ‘no person or body is [...] having a right to override or set aside the legislation of Parliament’.[428] This suggests that Parliament cannot enact any higher ‘constitutional’ law than an ‘ordinary’ Act of Parliament. If two Acts of Parliament on the same matter contradict with each other, a court having to decide on the validity of both statutes can simply apply the Act which has been passed later in time. The court then simultaneously rules that the earlier adopted Act has been implicitly repealed.[429]
There is just one legal rule which is, neither implicitly or expressly, subject to repeal. That is the doctrine of parliamentary sovereignty itself. Parliamentary sovereignty does not seem to be a matter of statute law, since this doctrine has never been formally entrenched in a codified constitution or in another document with a legal status.
Neither does the doctrine seem to be simply a matter of common law in the sense of judge-made law, because it would be implausible for a court to bestow unlimited legislative authority to an institution, which is superior to the courts. Parliamentary sovereignty must, therefore, rather be considered as a matter of common law, which the courts have not created, but only recognized as existing and thereupon endorsed.[430] For this reason, Goldsworthy suggests that the sovereignty of Parliament should be described as a matter of ‘customary’ law, which is different from both common law and statute law in the sense that it cannot be unilaterally changed by Parliament, the courts or another institution.[431] That is not to say, however, that the legislative supremacy of Parliament cannot be abolished. This would happen in the unlikely event that all ‘senior officials’ of the UK legal system cease to recognize the Parliament as the supreme law-maker of the United Kingdom.[432]This state of affairs is arguably founded on the idea that law cannot be a substitute for politics.[433] The foundational paradigm of British constitutionalism seems to be that human rights, and the broader constitution at large, cannot be protected beyond the political process. As a result, constitutional issues should be deliberated upon through democratically elected institutions.[434] This justifies the current position of Parliament as the holder of the supreme law-making authority in the United Kingdom. In this regard, it is important to note that although Parliament is not subject to legal restraints, its power has always been considered to be constrained extra legally (i.e. morally and politically), notably by constitutional conventions.[435] In a legal sense, however, there is no institution which could force Parliament to obey these limitations.[436]
Parliamentary supremacy, however, does not seem to be unfettered.
It is mitigated by the second pillar of the UK constitution, the rule of law. In the words of Lord Bridge in a 1990 House of Lords case:In our society the Rule of Law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law.[437]
The courts traditionally smooth constitutionally sensitive legislation by way of interpretation. Before 2000, when the Human Rights Act 1998 (HRA) came into force, they did so on the basis of a presumption that Parliament could not have intended to legislate contrary to certain common-law rights.[438] Since then, the HRA explicitly empowers courts to interpret legislation ‘as far as possible’ consistently with the right enshrined in the Act.[439] Even so, it is controversial to what extent the rule of law empowers courts to act as guardians against legislative abuse.[440] Although the courts may try to interpret legislation creatively, they are still not allowed to openly quash Acts of Parliament violating rule of law principles. It is not entirely clear just how far the courts can take common-law presumptions. Courts have, undoubtedly, sometimes used them to frustrate legislative intent in the past.[441] Indeed, there is some force in the argument that there is, in practice, little difference between the practice of invalidation and a bold use of common-law presumptions.[442] Yet, this view is by no means universally shared.[443]
Having said that, it is worth noting that this traditional political conception of the UK constitution has increasingly come under fire.[444] Over the recent decades, UK Parliament has been faced with new legal and political obligations as a result of the recognition of the supremacy of EU law, the devolution of powers to the governments of Scotland, Wales and Northern Ireland and the incorporation of the ECHR by the Human Rights Act.
These developments have had both direct and indirect consequences for parliamentary sovereignty as such. Direct, because although it might be argued that Parliament could restore its legislative supremacy by explicitly repealing the legislation recognizing these obligations, that may not be so realistic from a political perspective.[445] Indirect, because particularly the development of European (human rights) law has, together with other global factors, contributed to the judicialization of the UK constitutional structure.[446] As a result, judicial attitude may have changed somewhat over the years. This was illustrated by Lord Hope when he said, in R (Jackson) v Attorney General, that:Parliamentary sovereignty is no longer, if it ever was, absolute [...] Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament [...] is being qualified [.] The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.[447]
What this teaches us is that parliamentary sovereignty, and with it the distinct ‘all the way’ political character of the UK constitution, is on a road to uncertainty. However, that should not cloud the fact that parliamentary primacy in shaping the constitution is still its current foundational principle. Nothing makes this clearer perhaps, than Sect. 4 of the Human Rights Act, which was introduced to enable some form of judicial rights review of legislation against ECHR rights while maintaining parliamentary sovereignty.[448] Though courts may not be able to invalidate primary legislation, they can signal their concerns to the political branches. To that end, Sect. 4 empowers them to issue a so-called declaration of incompatibility. Such a declaration is neither binding for the political actors, nor does it affect the validity of the Act in question. It firmly places Parliament at the centre of a dialogue between the courts, the executive and the legislature, about the proper trade-off between rights and public policy.[449] According to at least a substantial part of academic literature in the UK, the last say in this dialogue belongs to Parliament.[450]
In this constitutional climate, it is hardly likely that the courts assume the role as ultimate interpreters of the constitution.
This conclusion is strengthened by the fact that the UK courts, unlike their German or American counterparts, are generally unwilling to interfere in the political process itself. Matters of political and legislative procedure are considered non-justiciable.[451] The examples we mentioned in the previous paragraph are thus very unlikely to occur in the UK. This is not to say that they can never occur. The trend of judicialization, we mentioned before, provides ample reason for caution. One would perhaps not have expected the Lords of Appeal to accept the 2005 Jackson case, which concerned the procedural validity of the Hunting Act 2004. The fact that they did, arguing that the case concerned a question of law which could not, as such, be resolved by Parliament but which— from of rule of law perspective—had to be decided, echoes the reasoning of the US Supreme Court in Powell. Yet, unlike the American example, Jackson remains relatively exceptional.[452] It remains to be seen whether the traditional British reluctance to interfere with the political process is indeed gradually giving way to judicial constitutionalism.In short, although there are important qualifications, we conclude that the UK constitution—for the time being—is still very much dominated by the political branches of government. Parliamentary sovereignty makes it, in principle, very hard to identify limits to the constitutional powers of the legislature. Notwithstanding their own important role in shaping the constitution, British courts are currently unlikely to engage in a direct confrontation with Parliament.
4.2 The Netherlands
The constitution of the Netherlands similarly seems to have a political character. There are several important differences though. In the first place, the Netherlands, unlike the UK, has a written Constitution. It is clear, however, that this Constitution is far from exhaustive. Indeed one of the hallmarks of Dutch constitutionalism is that there are vast fields of constitutional law that are either not codified or not entirely controlled by the Constitution.
The political process is to a large extent regulated by unwritten rules and conventions.[453] Moreover, the bill of rights lacks several important rights, such as the rights to a fair trial and family life. However, the fact that there is a codified Constitution containing a bill of rights does mean that Parliament in the Netherlands is, at least conceptually, not as supreme as its British counterpart.[454] It cannot, in the words of Dicey, ‘make or unmake any law whatever’.[455] Its powers are limited by the Constitution. Still, the Netherlands comes relatively close to a concept of parliamentary sovereignty. The Constitution itself reserves the ultimate say on the constitutionality of primary legislation to Parliament. It does so in article 120 of the Constitution, which reads:The constitutionality of Acts of Parliament and Treaties shall not be reviewed by the courts.
Article 120 is taken to be a clear expression that matters of constitutionality are a political matter, best left for Parliament. Herein lies its relevance for our present inquiry, perhaps even more than in its prohibition of judicial review as such. In real life, the significance of this ban of judicial review is greatly diminished by the fact that the Constitution does allow the courts to review Acts of Parliament against treaty law. It does so in article 94, where it establishes the supremacy of treaty over statutory law. The combination of Article 120 and the Articles 93 and 94 of the Constitution attributes a rather exotic status to regular statute law. On the one hand, the courts cannot review the compatibility of Acts of Parliament with the domestic Constitution. On the other hand, the courts have developed a rather rich jurisprudence on the basis of international human rights law, notably the ECHR.94 This has led to a situation in which the relevance of the domestic bill of rights has greatly diminished.
More importantly, however, article 120 is of crucial importance to the way in which both the courts and Parliament define their respective roles. Its significance is thus of a more indirect nature. The Supreme Court of the Netherlands (Hoge Raad) has consistently held that article 120 is to be interpreted broadly. It also prohibits, for instance, review of legislation against unwritten legal principles.[456] [457] Moreover, article 120 is also taken to prevent courts from engaging in procedural review of the constitutionality of legislation.[458] Several judgments show the Court’s reluctance to interfere with the political process. In the 1999 Tegelen judgment, for example, it ruled that questions of legislative procedure and political propriety were matters for Parliament itself to consider.[459] In a similar vein, the Court has consistently refused to issue injunctions requiring the State to produce or withdraw legislation. This, according to the Court, is a political matter from which the courts should steer clear.[460] Even if Dutch courts have a mandate to engage in strong-form review of legislation, it is thus highly unlikely that they would ever interfere with the political process in a way reminiscent of the examples we discussed in the previous paragraph. So what does this all mean for the role of the courts with regard to constitutional amendments? That is not an easy question in the Dutch context, if only because of the complexity brought about by the combination of articles 120 and 94 of the Constitution. Traditionally, the Dutch constitution is a typical politically enforced constitution in the sense that it prescribes no limitations to the amendment powers of Parliament (in its constitutional capacity) and that it leaves matters of constitutionality to Parliament. Because the written Constitution is amended by an Act of Parliament, it is—according to article 120—Parliament itself who decides whether its amendment complies with the structure of the constitution or with unwritten constitutional principles. But what if such an amendment would violate the European Convention? Article 94 of the Constitution suggests that the courts would then be able to interfere. We do not exclude that possibility, but it would still be unlikely. Quite apart from the question whether article 94 of the Constitution also establishes the supremacy of treaty law over the Constitution, which apart from EU law is not settled until now, Parliament would still be able to withdraw article 94 itself. This is not unthinkable given the fact that Parliament is currently considering such an amendment.[461] Such a withdrawal of their mandate to review would not be reviewable by the courts, unless the European Convention or any other international document would warrant domestic judicial review of statutory legislation. That is, however, still not the case.[462] 5