European Politics Today

Once asked to review a potential law, if the Council find it unconstitutional, the decision is final and binding without the possibility of appeal. Indeed, members of the opposition in parliament try to increasingly use the Council and block legislation it could not stop in the legislature. Indeed, between 1981-90, 1/3 of legislation was referred to the Council, with just over half being deemed unconstitutional. This has lead to some commentators to view the Council as a 3rd chamber and policy maker in France.

This clearly would suggest that the court is highly important in French politics if it arguably has nearly as much influence over legislation as elected representatives in the National Assembly. Indeed, there is evidence to support the idea that the Council even takes an active role in prescribing legislation. Take for example the 1982 efforts of the government to nationalise a number of industries. The council blocked the decision, and recommended very specifically what steps would need to be taken for them to pass the legislation. The government was forced to accept or loose the bill completely.

The fact that the Council has this much influence further highlights its importance in France. It would be incorrect, however, to overplay this importance. As with all constitutional courts, the Council cannot actually propose legislation, as a true chamber of parliament would be able to do. While it may be able to recommend amendments to legislation put before it, and refuse to pass a particular bill, it cannot force the government to adopt it; it may choose just to abandon the bill. Also, as with other courts, the Council can only act to block legislation if there is some form of constitutional impediment that can be used.

Officially, they have no independence of thought; it is their role to act according to constitutional requirements, not personal partisan affiliations. Seen in this light it would be difficult to argue the Council or any other court is really that important in a state. It merely enforces what has already been decided in the past. Increasingly across Europe, constitutional courts are also have responsibility for defending the rights and liberties of the population, often contained in the constitution in the form of a bill of rights.

Constitutional courts, especially in Italy,9 have gone a long way towards ensuring that governments do not infringe upon these basic liberties. In acting this way, the courts do provide a greater amount of security for the nations citizens, and can be seen as important in this way. More recently, however, the European Convention on Human Rights has to some degree made this function less relevant and important, as citizens now enjoy super national protection of liberties. Despite the seemingly important role played by the courts, there are many nations who still function without them, the UK being the obvious example.

There are good reasons for this, including the fact that with no formal, codified constitution, it would be difficult to decide if legislation was incompatible with it or not. Also, as there is no law higher than ordinary law in the UK, any court would be impotent. Legislation could easily be passed removing any constitutional impediment to another piece of legislation. Britain, despite lacking this independent judicial review body is, however, still regarded to be a democratic state.

Conflicts over the jurisdiction of various departments and branches still occur, but are resolved in other ways just as successfully, mainly due to the more centralised nature of power in the UK. Civil rights are defended at a European level, not a national one. This could be used to suggest that a constitutional court is by no means essential to the success or democratic nature of a state. In the UK other institutions of government appear capable of resolving the issues delegated to courts in other parts of Europe. I believe the key importance of a constitutional court lie not in what it actually does as what it represents.

Some, quite correctly, criticise the courts as being a threat to parliamentary sovereignty. 10 The introduction of a constitutional court by a nation clearly establishes an institution with a higher authority than parliament, directly against the doctrine of parliamentary sovereignty. To establish a constitutional court is important if there is a will for the state to be run as a constitutional democracy, rather than a parliamentary one. The idea of a constitutional court complements a system based upon the separation of power

Related to this, it would also seem sensible to argue that a nation with a formal, codified constitution would find a constitutional court almost essential if there is any serious commitment to live by its provisions. It is only by an independent body of review being present that this can realistically be ensured. Whether or not constitutional courts are one of the most important institutions in Western European democracies is dependent, therefore, upon many factors, and it is impossible to suggest that all states could operate constitutional courts even if they wished to, due to a complex constitutional situation.

I believe that while they can have a role to play in governance, they are by no means essential. Even the most influential courts, such as the Council in France did not begin as powerful entities, but evolved into them as they became exploited over time for political gain. Their importance has grown, and indeed they have become part of the establishment in many nations. Without them, those nations would probably now struggle politically to resolve disputes. In countries where they do not exist however, I feel they are not largely essential and generally unimportant.