The second Irish referendum and the new Supreme Court of the United Kingdom

Besides other major news this week, like the Samoan and Indonesian catastrophes, the European legal world has experienced two major (I would dare say improvements) events in the legal sphere. And the legal aspect is what concerns me right now. My compassion for all the victims of the earthquakes.

First of all, believe it or not, the UK finally has a Supreme Court! Well some people might say, so what, didn’t it have one? Well you see Britain has a really complicated legal (common law) and judicial institutional system. Bottom line is that, before October 2009, the highest judicial body in Her Majesty’s realm was the House of Lords. For anyone who studied/studies civil law, this is something quite uncommon. Why? Because from Montesquieu  onwards we have the so called separation of powers principle, basically saying that The Legislative (Congress, Parliament etc.), The Executive (Government, Prime Minister, President) and the Judicial (the Courts) have to be separate from each other, especially the Courts cannot be influenced by any other powers! The United Kingdom had quite an odd system, as in its case the highest judicial body (basically meaning the “Supreme Court”) was the House of Lords. Now the House of Lords is the upper chamber of Parliament (the Legislative), technically you could compare it to the Senate in other countries.

As you might think, in this way the highest judicial authority and the upper chamber of the Legislative were pretty much the same. Put it into other words, a section of the Legislative was the “Supreme Court”. So of course, this raised issues of judicial independence and impartiality, even in front of the ECHR and it lead to the adoption of the 2005 Constitutional Reform Act, setting up the Supreme Court of the UK.[1]

I see this as a step forward in the development of the sometimes overly conservative UK judicial system and of course a lot of people can’t wait to see how the new Supreme Court will function.[2]

Second, and even more important, is the second Irish referendum regarding the Lisbon Treaty. Now for all you Lisbon Treaty skeptics, today’s results quite shocked me, as on the second referendum two thirds of the population said YES. Two years ago, the whole ratification process was stopped by the negative, 53% percent referendum, but now it looks like the Irish have changed their mind. Only the Czech president has to sign it, and both the Polish and Czech governments have to deposit the ratifying instruments, and the Lisbon Treaty has a green light.

Why am I so interested in it? Well besides all the other innovations, like the abolition of the pillar system, the entry into force of the Niece Charter of Human Rights etc., the EU judicial setup will sort off change. This is a really delicate matter and I will not dig into it deeply, but I wrote my Bachelor thesis on it. Basically, the EU will accede to the European Convention on Human Rights. Now this is quite interesting, especially from an EU Human Rights protection and an EU Constitutional point of view. If in the EU, the European Court of Justice (Luxemburg) was the highest judicial authority, by acceding to the Convention, in human rights matters the ECJ will be technically lower than the ECtHR, and in human rights matters the ECtHR in theory will have the power to rule against ECJ decisions. Of course this is not so sure, as there is such a thing called the Bosphorus compromise, in which the ECtHR basically said that the ECJ offers equal (“comparable”) protection to the ECtHR in human rights matters, so it will only examine such cases when extreme breaches have occured.[3]

This is an extremely interesting subject (I will not bore you guys with it) as the entry into force of the Lisbon Treaty is really near and a lot of people will want to see the new constitutional and institutional changes. It will create a lot of chaos, renumbering articles, restructuring and so on, EU lawyers will curse and administration workers will think twice about their jobs, but it will definitely bring some fresh air into the EU system.

Just wanted to remind all those interested in international and EU legal matters, of the new events.

Maastricht, 3rd of October 2009


[1] For further reading on the topic. Dragoljub Popovic, ECHR Justice – European Court of Human Rights and the Concept of Separation of Powers, available at http://www.enelsyn.gr/papers/w4/Paper%20by%20Judge%20Dragoljub%20Popovic.pdf

[2] For the newly functioning UK Supreme Court see the official website http://www.supremecourt.gov.uk/about/history.html

[3] For further reading: and Leonard F.M. Besselink – The European Union and the European Convention on Human Rights – From sovereign immunity in Bosphorus to full scrutiny under the Reform Treaty?, Utrecht Law Review 2008 Kathrin Kuhnert – Bosphorus – Double Standards in European human rights protection? – Utrecht Law Review, Vol.2, 2006

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