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[Engels] Comparative constitutional and administrative law I

Infoteur: Adriaan

In this comparison firstly the history and origin of both systems, ending in the present form, will be lined out. Thereafter an description will be made of the participation of both systems to European law and human rights. Conclusively a comparison will be made to discover which reconciliation appears to be more effective and what the consequences of these reconciliations have had for both constitutional models.


A comparative view between the reconciliation of Dutch and British constitutional law practise to European law in general and human rights in particular.

Introduction and content

In this comparison firstly the history and origin of both systems, ending in the present form, will be lined out. Thereafter an description will be made of the participation of both systems to European law and human rights. Conclusively a comparison will be made to discover which reconciliation appears to be more effective and what the consequences of these reconciliations have had for both constitutional models.


The British model

The history of the constitutional model of Britain can be seen as the diminishing sovereignty power of the Royal Crown and the growing power of parliament into sovereignty. Three important steps can be recognised to be responsible for this development. Under the Tudor kings, the power of legislation was in the hands of the monarch. In the seventeenth century the idea began to grow, and the courts stated it, that the king could not change general law without the support of Parliament. Deduced from this idea courts held that punishable offences could only be defined by an Act of Parliament. Although the king strongly disagreed with this development, he could not prevent the courts from further developing their case law in this way.

The second important step set into the direction of the sovereignty of Parliament was caused by the vicissitudes of the monarchy itself. In 1688, King James 11 had to flee the country after he dissolved Parliament. His son-in-law William of Orange, was offered the crown, after accomplishing an agreement with the notables. A new Parliament was elected by a direct vote and the king also saw necessity in strengthening the position of Parliament as an institution. Besides going further in the direction of limiting the powers of the Royal Crown, one of the first actions Parliament took, was to adopt of an Bill of Rights, which reinforced the powers of Parliament.

The third step was that the first steps where more established. The democratization of Parliament itself gave the doctrine of parliamentary sovereignty its democratic legitimacy. Later on added to that was the accountability of ministers to Parliament and voting rights where extended to new groups of population. And so, constitutional doctrine had developed in what Koopmans calls the parliamentary model, in which the legislative body, parliament, is sovereign; no law is higher then an Act of Parliament. It cannot be challenged, not by the king, nor by citizens. Judicial review has in this model no place.

The Dutch model

The Kingdom of the Netherlands was established in 1815 after the fall of Napoleon I. The new constitution was obviously influenced by the English constitution. It gave an important role to the legislative power. A difference was that Parliament( Staten-Generaal) was not sovereign, but had to observe the provisions of the constitution. But the only limitation of the legislative by making statutes was its own vision on whether they where compatible with the constitution or not. It was common sense in that time that a decent government would never act in violation of the Constitution. In 1848 the Constitution was modernized under influence of the ideas of that time, by reducing the royal prerogatives and instituting the accountability of ministers. In the new Constitution a sentence was put down which stated that the statutes are inviolable. The idea expressed by that sentence was to remain the basis of much constitutional thinking for about a century . In the first part of the twentieth century this idea of inviolability of statutes would be the leading assumption applied by the courts: there was no space in case law for judicial review of legislation. The underlying thought for this practise was that the courts weren’t to enter the political arena. It was also due to the assumption that constitutional questions had a political character. The representation in the Staten-Generaal had to settle those problems in a political debate. Like in Britain the courts would not look into the validity of Statutes.

The reconciliation of British practise to European law

In England there is no higher law then an Act of Parliament. There is no judicial review: statutes cannot be challenged by anyone. But with the accession to the European Communities, in 1973, things would have to change. European Community law was to be prevailing over English national law and British courts had in case of conflicts to apply European Community law over British statutes. The political institutions already had participated on that upcoming problem by adopting an amendment which aim was to reconcile the primacy of Community law with the doctrine of the sovereignty of Parliament. The European communities Act 1972 made Community law applicable in the United Kingdom and further contained that this also would count for future Community rules. This can be seen as an attempt to integrate the British legal system into a European legal order without assailing the doctrine of sovereignty of Parliament. English judged did have difficulties in accepting the fact that now Community rules where prevailing over British statutes; they already had trouble accepting that Community rules had the same effect as British statutes.

Acting in its position as supreme appeal court of the United Kingdom, the House of Lords did finally accept the supremacy of Community law in the early 1990s. The case was as follows: Spanish fishermen claimed they had the right of free establishment in EC countries under the EC Treaty, but where encumbered in the exercise of this rights by a British statute which demanded a licensing scheme for fishing in British territorial water ands and in the contiguous zone. The House of Lords then stated that the British statute was ineffective and thereby it recognized that EC legislation was higher law than Acts of Parliament and that in cases of conflict the doctrine of the sovereignty of Parliament do not apply. The question arises whether such a statement doesn’t in fact disturb the whole idea of sovereignty of Parliament: can Parliament, under the doctrine of sovereignty of Parliament, tie its own hands and those of succeeding Parliaments? There has been a valid discussion concerning this very issue ever since.

The reconciliation of Dutch practise to European law

The practise of moderate parliamentary sovereignty in the Netherlands as described before came to an end in 1953. Parliament adopted an amendment which aim was to adjust the Constitution to upcoming changes in international law ( the final version of this amendment dates from 1956). Specially to changes necessary for the integration of European law. The change in the constitution made possible that legislative, administrative en judicial powers can be transferred to institutions of international organization, and that provisions of international treaties ‘which, according to their nature, are capable of binding citizens ‘shall have this binding force after publication; they will prevail over earlier or later provisions of national law in case of incompatibility. Goal of this amendment was to reconcile the Dutch constitution to the necessary European integration process, since in the year 1953 the European Communities for Coal and Steel started its activities. Aside be remarked that the new constitutional provisions had a wider scope then was aimed for: it not only recognised the supremacy of European law, but of international law in general, over national law.

For applicability of international legislature the consideration ‘capable of binding the citizens’ is important. The Hoge Raad developed a special regime for the meaning of that expression. In a case in the 1960s the Hoge Raad stated ( actually it confirmed a statement of a lower court) that a distinction had to be made between ‘provisions which, by their nature, can be directly applied by the courts’ and ‘provisions which have no other purpose than to give instructions to legislative or administrative bodies’. Further the Hoge Raad stated that the courts had to judge whether a rule has direct binding or not, apart from the opinion on those matters of government or representative bodies. Thereby the courts would have to handle two tests to examine whether a rule is direct binding or not. First needs to be tested if the wording of the concerning rule expressly assigns rights to individuals. Secondly needs to be tested if concerning provision can affect the legal position of individuals without any implementing measure being taken by the national legislature. By a negative test result, the provision can not be considered as ‘capable of binding the citizens’. This conception of direct effect was not entirely new: it already had been developed by the Court of Justice of the European Communities since 1963.

Human rights regime in Britain

The rights and liberties enumerated by the European Convention were made part of British law by the Human Right Act 1998. At that time however, British courts were powerless when confronted with legislation that conflicted with those rights and liberties. The courts had to interpret legislation in accordance with the provisions of the Human Right Act. Difficulty hereby however was that courts had to apply legislation even when such an interpretation was impossible. In the area of judicial decision making the Human Rights Act allows the European Court of Justice. In the Act is said that provisions of European Convention are to be interpreted in the way indicated by the European Court. The British courts have to follow that interpretation. That also counts for the provisions in the Human Rights Act.

Human rights regime in the Netherlands

Did in the Netherlands the constitutional change, that accepted the supremacy of international law, diminish the traditional inviolability of statutes, an even more diminishing effect was sorted by the implementation of the European Convention on Human Rights. At that time Dutch courts where restrictive in interpreting the rights of the Convention, but gave a wide scope to the possible exceptions. A judgement of the Hoge Raad in 1962 illustrates the judicial attitude in accordance to the European Convention. The question in casu was whether a limitation of the right to organize was not conflicting the freedom of religion, article 9 of the Convention, of which a justifying exception could be made in order to protect the public order. The Hoge Raad held that the question was whether a ‘reasonable legislator’ could think that such a such a rule was necessary for the protection of the public order and said that it was in case not inconceivable that a reasonable legislator would indeed think so.

This attitude however changed when in several cases it appeared that the scope of the Human Rights of the Convention had a wider range then those corresponding rights of the Dutch Constitution, and so more often a direct appeal was made on the basis of the Convention. Another reason for the changing attitude was the fact that in several cases the European Court of Human Rights condemned the Netherlands for not complying with the Convention. A result was that the idea grow more and more that a national court had the power to strike down legislation that was not in accordance with the Convention, and also under the influence of a new generation lawyers, the attitude began to change into a more investigative attitude.

A first result was that provisions of the European Convention containing human rights could be directly applied and overturn national legislation. Secondly the Hoge Raad held that interpretation should be in accordance with the European Court’s interpretation. Men could also say that that human right protection in the Netherlands is a mainly developed by the courts on basis of international and European law. Consequence of these developments is that statutes are a whole lot less ‘inviolable’ then they used to be. The debate on judicial review relived but, when revising the Constitution in 1983, A large majority of the Staten-Generaal decided to retain the prohibition of examination of statutes, so that the constitution still says that courts ‘shall not enter into examination of the constitutionality of statutes’.

Comparison and conclusion

It is clear that the constitutional law practise of both Britain and the Netherlands have changed under influence of European law and human rights.
With the description of the reconciliation of British practise to European law the question arose whether the acceptance of the supremacy of European law can be brought in accordance with the model of the sovereignty of Parliament. At first sight it seems to be a paradox: how can in a constitutional system in which no higher law is accepted, where no one can challenge Acts of Parliament, be place for acceptance of higher law? As described, the House of Lords(as supreme appeal court) tried to do so by stating that in case of conflict between Acts of Parliament and those of European law, the doctrine of sovereignty of Parliament has to be put aside. That statement in fact admits the impossibility of bringing acceptance of higher law in accordance with Parliament’s sovereignty. But practically it gave a solution to the problem Britain was facing; it had to accept European law as higher law. But principal it is not a solution: Although Acts of Parliament still can’t be challenged, court have to apply statutes even when incompatible with European law or human rights, Britain obliged itself to implement European law. Men could state that by implementing European law into Acts of Parliament the doctrine of sovereignty of Parliament remains untouched, it is obvious that this is a very hollow sovereignty. The fact that in cases of conflict between Acts of Parliament and

European law or human rights the model of sovereignty of Parliament has to be put aside, is in my opinion an indication that in these times of globalisation and further going Europe cooperation this model looses more and more of its original character and function. In the Netherlands is was also necessary to reconcile the constitutional law practise in accordance with the acceptance of European law. Like in England, in the Netherlands it also was not possible for the courts to enter the examination of constitutionality of statutes. As we have seen, integration of European law into Dutch law was made possible by enacting an amendment that recognized European law as higher law over national law and later on brought into practise by the courts that started to examine whether legislation was in accordance with European law or human rights or not. In comparison with England this solution seems to have less complicated consequences because it simply recognizes European law as higher law.

This monistic way of dealing with international law is to prevail over the dualistic way from a practical view: European provisions often don’t even have to be changed into national legislation and merely prevails over it and in case of friction. A little bit of an awkward situation existed due to the way the Netherlands recognised supremacy of European law and human rights: courts can’t enter into examination the constitutionality of Statutes, but can actual do so on base of corresponding international law. Resuming men could say that the confrontation of British and Dutch constitutional law practise has changed constitutional law practise of both legal systems. In Britain it appeared to have a larger impact, due to the fact that it shows that acceptance of higher law, which is necessary in these times of globalisation and international legal cooperation, in fact infringes the whole constitutional system, since it showed the impossibility of bringing the sovereignty of Parliament in accordance with acceptance of higher law.

In the Netherlands reconciliation to European law en the international human rights regime went smoother: after enacting an amendment which recognised supremacy of European law( and international law in general) and acceptance and bringing it into practise by the courts, the assimilation to the new current European and international legal situation took place. It is however obvious that this way of accepting higher law was more easy for the Netherlands, where Parliament already had to observe the provisions of the constitution

Bronnen

  • R.C. van Caenegem, An historical introduction to Western constitutional law, Cambridge, 2003
  • Courts and political institutions, a comparative view, Cambridge, 2003
  • Beginselen van de democratische rechtstaat, Prof.mr. M.C. Burkens ea, 2001
© 2007 - 2008 Adriaan, gepubliceerd in Buitenlands (Educatie en School) op 22-06-2007. Het auteursrecht van dit artikel ligt bij de infoteur. Zonder toestemming van Adriaan is vermenigvuldiging van dit artikel verboden. Meer...

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