9 Colum. J. Eur. L. 341 (2003)
reviewed by Jean Chen.
UK Public Law & European Law: The Dynamics of Legal Integration focuses on the interaction of UK courts and European law in developing UK public law. The central thesis illuminates a trend toward better legal integration in the UK through a more open approach to the integration of domestic public law and European law. While legal integration is often questioned in academic debate, this book contends that recent and ongoing developments, most notably the Human Rights Act of 1998, require a reassessment of the UK courts’ interaction with European law. The interaction of domestic and supranational standards, especially in the European Community, allows national courts to consult European law for assistance with the development of their own principles and practice. Within the UK, a creative use of European law has ramifications for the constitutional doctrine of parliamentary supremacy as well as an impact on the relations of domestic government institutions.
The author, Gordon Anthony, has been a Lecturer in Law at Queen’s University in Belfast since 1999. His research focuses on European integration, constitutional and administrative law, and the impact of European law on public law systems. Much of the research underlying this book was conducted while Mr. Anthony was a PhD student at the Institute of European Studies at Queen’s. Over the past few years, Anthony has written books and essays on European Community law and Northern Ireland, as well as articles on the Europeanization of UK public law, the subject that he discusses here at length.
The book successfully analyzes the relationship between UK public law and European law, contemplating in detail the role that UK courts play in the development of UK public law. The topic has been well researched and carefully considered, such that the theoretical stance of the author is extensively supported by historical cases, statutes, and relevant legal and governmental theories. While the specificity and depth of his inquiry might serve to limit the primary audience to students and experts in supra-national European law and its cross-sections with national constitutional and administrative law, the notable clarity of organization and writing style render it accessible to the non-expert. Moreover, the thorough and systematic treatment of the separate underlying histories and theories, including detracting viewpoints, allows even a casual reader to quickly develop a good sense of the impact of legal integration on domestic legal standards in the UK. Given current developments in the European Community and the UK, such as the enaction of the Human Rights Act of 1998 in October 2000 and the increasing relevance of supranational standards to international affairs and national legal orders, the Europeanization of national legal systems is a very timely subject.
The book is well structured and therefore conducive to familiarizing an inexperienced reader with the Europeanization of UK law. After an introduction to the topic, the book considers the dynamics of UK public law and European law, the reception of European law in the UK, the influence of European judicial review and remedies on law in the UK, and the impact of the Human Rights Act’s direct incorporation of European law into UK law. Every subsequent chapter relies upon and builds toward a conclusion hopeful about what UK public law stands to gain from more open integration of domestic and European legal standards. Each chapter begins with an introduction that allows for the contextualization of the specific theoretical and historical episodes that follow.
Anthony commences by putting into context the study of UK public law’s connection with European law, briefly introducing the European Communities Act of 1972 and the Human Rights Act of 1998. The author explains the historical context, in particular the paradox of two paradigms of law – European versus national legal primacy – arising from the accession of the UK to the European Communities and the resulting limitations on the ability of UK courts to borrow from European law. At this point, the author posits his main thesis that, although integration has generally been limited by orthodox views on public law, perhaps the UK is on the margin of a significant change in attitude towards legal integration due to changes in domestic institutional assumptions together with the effect of the Human Rights Act. After posing the question of the extent to which borrowing from European law is desirable, Anthony summarizes the remaining chapters, providing a useful roadmap for readers to better follow the progression of the discussion.
The chapter discussing the dynamics of UK public law begins with a short treatment of the evolution of the domestic legal order and the role of judicial review in government. The author outlines the theoretical debate, which describes the institutional role of the courts as either subordinate to the parliament, or as more autonomous with regard to law-making capacity. The expansion of supervisory jurisdiction over public law to include more flexible notions of judicial review of legislative intent reflects the evolution of the courts’ role. Case studies show how court rulings have contributed to this development by subjecting the heretofore exclusive powers to review” and expanding to govern non-statutory and private power such as non-statutory self-regulating bodies. The author then discusses the role of the Human Rights Act in the broadening of judicial review over public authorities, situating the Act’s contribution in the theoretical debate on the role of the courts as an institution. The author suggests in conclusion that the common law model’s emphasis on the institutional adaptability of courts should encourage greater deliberation with regard to the benefits of legal Europeanization, if not greater integration itself.
Anthony then turns to European law in the interest of providing a full perspective on legal integration. The institutional primacy of the European legal order in relation to national legal systems is reflected in the theory of the loyalty of national courts to European law and to principles ofjudicial review prescribed by the European Court of Justice. The discussion then focuses on the ECI’s decisions establishing the doctrine of state liability for violations of supranational standards, in particular individual rights under European law, followed by a couple of national court decisions limiting the application of the supranational standard of human rights and thus the reach of legal integration. The European Court of Human Rights also makes demands on national courts by requiring that the rights guaranteed by the European Convention on Human Rights are put into effective and meaningful practice, and that a balance be found in state restrictions on these rights. Anthony concludes by suggesting that while European law’s successful integration into domestic orders may be limited, especially by courts espousing national values, the UK’s experience in integration may be distinguished.
The UK’s reception of European law created a constitutional paradox as both the European and domestic legal orders claim supremacy, a paradox that the courts have reconciled by prioritizing European law but grounding this practice in orthodox theory. The main argument of the chapter is that orthodox theory’s conceptual emphasis on the dualism of UK and European law will constrain legal integration and interaction. The author then explains through examination and theoretical treatment of a few cases the ceding of the UK courts’ subordination to Parliament and move toward more institutional flexibility. This move is shown by court rulings referencing EU law rather than UK treaty obligations under the European Communities Act as sources of authority. A few additional cases and their theoretical context are considered as evidence of increasing judicial creativity and the willingness of UK courts to look to European law in areas not governed by European law. In recapping the chapter, the author highlights how using orthodoxy as the doctrinal justification of reception of European law makes it difficult for UK courts to clearly state their rationale, and how dualism in the selection of governing law may limit legal development.
Anthony characterizes judicial review as the area most limited by the dualist conceptualization of European and UK law. Judicial review in the UK is defined by the institutional principle that courts review administrative law for its compliance with parliamentary intent, whereas European courts are more involved in the judicial review of administrative decisions and are generally considered much more willing to fill in gaps. A series of cases demonstrate the reluctance of UK courts to apply proportionality, a governing principle of European judicial review which provides that public bodies must balance individual rights with any adverse effects their decisions may have. EU law has played a part, however, in a series of cases developing the UK’s protection of an individual’s substantive legitimate expectations. The author suggests that the UK would also benefit from reference to European legal principles that impose a duty to give reasons for administrative decisions, rather than relying on the UK common law’s approach that generally imposes no such duty absent issues of fairness. Although dualism has not precluded legal integration, the author concludes that a deeper interaction would be salutary, despite abstract and practical limits.
The author then turns to remedial standards as an area in which UK courts have allowed some crossover from European remedies. The European Court of Justice sought remedies in national courts in order to most effectively protect European rights. This is reflected in seminal cases integrating supranational standards for restitution and injunctive relief into the domestic order. The European doctrine of state liability for breach of an individual’s EU law interests is examined within the theoretical debate. Anthony then considers a UK case incorporating European standards into a judgment on the liability of public authorities. Beyond these inroads, the author sees the European Convention on Human Rights and the Human Rights Act as creating the possibility for deeper legal integration.
The European Convention on Human Rights had a limited impact on the UK legal order because constitutional orthodoxy precluded any direct role and courts consequently limited any indirect influence. The Human Rights Act made consideration of the European Convention on Human Rights jurisprudence obligatory. Applying the common law model of review can allow the courts to supersede dualist distinctions and to better address legal issues in light of European integration. Considering several cases and through discussion of the theoretical debate, Anthony outlines the limited recourse courts had to the European Convention on Human Rights for protection of fundamental rights prior to the Human Rights Act. He then provides an overview of the Human Rights Act with regard to the development of domestic law, and discusses the increased incorporation of European Convention on Human Rights principles, such as proportionality in a theoretical light, as well as the repercussions of particular cases. The chapter concludes by suggesting there has been more active legal cross-fertilization as a result of the Human Rights Act.
The author concludes the book with a short discussion of the assumptions and implications of his thesis, as well as some of the boundaries of his discussion. Addressing those who believe the conclusions he draws from his analysis will lead to a revolution in public institutions, Anthony claims that any impact will vary in form and depth and that legal integration will depend on greater constitutional reform within the UK. Ultimately, Anthony is hopeful that the insight into the potential for adaptation and realignment offered by the interaction of national and supranational legal orders will be put to productive use.