Unamendability in Politically Enforced Constitutions

As we said before, the concept of unamendability seems highly problematic in politically enforced constitutions. Neither the UK nor the Dutch Constitution pre­scribe any substantive limits to the amendment power of the legislature.

That said, it is equally inconceivable that the courts would simply accept a constitutional amendment touching upon the fundamental principles of either of these constitutions. These principles are simply too deeply rooted for that. However, the judicial reaction in such cases would not be one of (direct) invali­dation, but rather one of ‘judicial disobedience’ or ‘deafness’. Although the courts, in effect, would render the amendment in question benign, this kind of unamend­ability, if one might call it so, is thus highly indirect. Two examples, drawn from each of the jurisdictions, might serve to illustrate this.^[463]

5.1 Judicial Creativity and Deafness in the United Kingdom

As we have mentioned before, the UK system of rights protection is largely shaped by the Human Rights Act 1998. The Act incorporated most of the rights of the European Convention on Human Rights and allowed British courts to review both government and legislative action against those rights.

Thus, from the 1980s onward, there are political calls for an effective bill of rights and a judicial role in protecting those rights. These calls gradually take the shape of a call for the incorporation of the European Convention.^[468] But the political system is slow to respond. Too slow for some. This legislative inertia tempts both judges and scholars to contemplate using the common law in order to develop an already existing body of liberties, inspired by the European Convention and the case law of the European Court.^[469] However, it need not come that far. Shortly after the new Labour government takes over in 1997, it introduced the bill that ultimately led to the adoption of the Human Rights Act 1998.

The 1998 Act has radically transformed the position of the courts in the UK. Not only were they now empowered to review both acts of government agencies and Parliament against Convention rights, they also took the enactment of the HRA as a clear sign that Parliament had intended them to develop a sturdy approach towards the protection of human rights.

This clash has immediate consequences for the HRA. The Act has never gained real popularity. ‘The average person does not feel as though he or she owns it’.^[473] Already in 2009, the leader of the Conservative Party, David Cameron, indicated that he will ‘tear up the Human Rights Act’.^[474] Instead, the Conservative govern­ment aims at introducing a British Bill of Rights. Moreover, recent proposals indicate that withdrawal of the European Convention, currently the cornerstone of UK fundamental rights law, is a real probability.^[475] However, it is far from clear whether the purely domestic bill of rights envisaged by the Conservatives will still encompass judicial review of legislation. The basic idea behind the Conservatives proposals is after all, to limit the judicial role which, in the eyes of most prominent Conservatives, has led to excessive judicial activism.^[476] Whether correct or not, for present purposes we assume that abolishment of the HRA will lead to a significant curbing of judicial power in Britain. This assumption is supported both by recent public remarks by prominent members of the Conservative party and by the reactions of judges and scholars to the proposed withdrawal of the HRA.^[477] As early as 2010, the then President of the UK Supreme Court, Lord Phillips, indicated in a speech, that the HRA ‘is here to stay’.^[478]

How would the courts resist such a withdrawal from the European Convention and the possible departure of their mandate of review? As Mark Elliott has noted, one distinct possibility would be the court's renewed attention for the common law as an, admittedly somewhat modest, substitute for both the HRA and the Convention.^[479] Indeed, there are signs that the recent discussions on the future of the HRA have prompted the UK Supreme Court to emphasize the role of the common law as a source of fundamental rights.^[480] In a fairly recent line of cases, the Supreme Court has underlined the need for appellants to invoke the common law, rather than the HRA and the Convention.^[481] In Kennedy v.

Since the passing of the Human Rights Act 1998, there has too often been a tendency to see the law in areas touched on by the Convention solely in terms of the Convention rights. But the Convention rights represent a threshold protection; and, especially in view of the contribution which common lawyers made to the Convention’s inception, they may be expected, at least generally even if not always, to reflect and to find their homologue in the common or domestic statute law. [...] In some areas, the common law may go further than the Convention, and in some contexts it may also be inspired by the Convention rights and jurisprudence (the protection of privacy being a notable example). And in time, of course, a synthesis may emerge. But the natural starting point in any dispute is to start with domestic law, and it is certainly not to focus exclusively on the Convention rights, without surveying the wider common law scene. As Toulson LJ also said [...] “The development of the common law did not come to an end on the passing of the Human Rights Act 1998 [,..]”.^[482]

These are not lone swallows. Baroness Hale, the current Deputy President of the Court, has openly suggested that common-law constitutionalism is on the March.^[483] Neither should this be regarded as a mere coincidence. According to Mark Elliott:

It arguably represents a renaissance in this area, as common-law constitutionalism emerges from the shadow of the Human Rights Act. One of the likely implications of this phe­nomenon may turn out to be that if the HRA ceases to cast any such shadow—by virtue of being repealed at the behest of a future government—the common-law constitutional landscape that is left behind may be remarkably similar to the situation that has obtained during the era of the HRA. Indeed, Kennedy suggests that, at least in some respects, the common law may already go further than corresponding provisions of the Convention.^[484]

Should Elliott be correct, then one might argue that the Supreme Court is in effect resisting the kind of amendment of the UK constitution as envisaged by the current government.

First, unlike the examples mentioned in Sect. 2, this resistance would certainly not take the shape of an invalidation of such an amendment. There is nothing in the UK constitution that prevents Parliament from withdrawing the HRA or from leaving the European Convention.^[486] Resistance would rather take the shape of a creative form of judicial disobedience or deafness. If the message of Parliament is that the courts should back off, the Supreme Court might choose not to fully understand such a message. But this ‘deafness’ is of course limited. It cannot pretend that the HRA, and with it its instruments, has not been withdrawn. This kind of judicial disobedience, therefore, needs some creativity: hence, the devel­opment of common-law constitutionalism as an alternative. Of course, Parliament can still respond by curbing the common law by statute, but that would, first, be extremely difficult, and would probably provoke a true constitutional crisis. Question is, whether Parliament would truly want to take such a risk.

Our second observation is that any judicial alternative would probably not provide the same degree of protection, the HRA has to offer. Common-law con­stitutionalism would, in other words, provide some kind of backup, but the pos­sibilities of judicial law-making in this respect are of course limited.^[487] This marks a second difference with the examples of constitutional amendability, most notably taken from the case law of the Indian Supreme Court, we mentioned before. Where invalidation would—in most cases—lead to a return to the previous status quo, the kind of covert unamendability we have described here only leads to a partial revival.

5.2 Judicial Disobedience in the Netherlands

As an example of covert unamendability in the Netherlands, might serve the case law of the Dutch Supreme Court regarding the principle of legality.

In two landmark cases, the Supreme Court decided that the Dutch constitution does not only require a legal basis for measures that are enforced by penal sanc­tions. The first of these cases, Fluoridering (Fluoridation), dealt with the decision of a local authority in Amsterdam, which allowed the local water company to add fluoride to tap water of all people in the City in order to promote public health. The Supreme Court condemned this measure since it did not rely on a basis in an Act of Parliament. The Court deemed a legal basis for this measure necessary since it was of ‘such a fundamental nature that it could not be assumed to fall within the scope of the task of the water company without an explicit basis in an Act of Parliament’.^[490] The second case, Methadonbrief (Methadone Letter), involved the status of a letter issued by a group chief inspectors of public health to all general practitioners, asking to cease to provide methadone to drug addicts.^[491] When a chief inspector of the Dutch Health Inspection learned that a doctor did not adhere to this request, he urged the pharmacists in the area to ignore the prescriptions of this doctor. The general practitioner involved challenged the issuance of the methadone letter. As a result, the Court held that this exercise of power could not be permitted, as there is no Act of Parliament attributing the competence to general practitioners to issue guidance as to the way in which they engage in their profession.^[492] Although the issuance of letter involved just a request (and not a binding norm), it could, according to the Court, in fact, be equated to the exercise of power that requires a basis in an Act of Parliament in order to be lawful.

This requirement does not stem from the Constitution, which does not require an express legal basis for measures which are not enforced by penal sanctions. The Supreme Court has thus extended the scope of Article 89 of the Constitution by holding that also other measures involving legal or actual exercise of power require a basis in an Act of Parliament. Interestingly, in later years, the legislator generally agreed with the interpretation of the legality principle by the Supreme Court but deemed amendment of Article 89 unnecessary.^[493] The legislator opined that the entrenchment of current interpretation of the legality principle by the courts would not have any added value in practice. The extension of the legality principle is, therefore, regarded to be mainly determined by the case law of the Supreme Court. As a result, it is generally agreed that the government does not have a mandate to autonomously issue general binding norms, even though the Constitution of the Netherlands provides that it does have such a mandate.^[494]

Again, the example of legality in the dialogue between the Dutch Supreme Court and the constitutional legislature shows that any amendment by the legislature is not as such invalidated by the Court. Concerns are rather converted into an alternative judge-made arrangement. And again, the outcome of this dialogue might not be what either of the branches had envisaged at the outset. Rather, what follows is something of a compromise between the two key players in the discussion.

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