The Much Ado about Judicial Politics in the United Kingdom: A Statistical Analysis of Reported Decisions of United Kingdom Courts Invoking EU Law 1973-1998
London School of Economics and Political Science
London WC2 2AE
Introduction Any lawyer can, at best, be ambivalent about the study of judicial politics. The treatment of courts 'as one governmental agency among many - as part of the … political process rather than as a unique body of impervious legal technicians above and beyond the political struggle'1 suggests a supreme disinterest in the epistemic foundations of law. This heavy instrumentalisation, by reducing courts to simple agents of the political process, can offer little instruction in the grammar codes of legal knowledge, processes and discourse. It is the internalisation of these by participants, which forecloses certain options and provides a certain resistance to, and therefore autonomy from, outside pressures - in essence, those very legal qualities that lead political or other actors to resort to law. Yet for this author, at least, ambivalence is not synonymous with dismissal. The autonomy of the political system imposes external constraints upon the operation of the law and whilst the judicial system may be autonomous, it is not autarkic. It will often be used instrumentally by political actors. Indeed, a feature of the legal system is that it is particularly vulnerable to these outside pressures. For its quest for formal and functional effectiveness leads not just to a concern with the problem of compliance, but also to a desire to 'perfect', and therefore be sensitive to, the properties of the political processes, domestic and EU, that it regulates. The insights offered by judicial politics lie precisely on this apex in its strong focus upon the process of negotiation and adjustment between the judiciary, other agencies of government and the wider political sphere.
Judicial politics studies have a particular strong resonance in the case of the judicial system of the EU. The dependence of the EC legal system upon a variety of national governmental agencies for its implementation, enforcement and much of its application has led to concerns about its formal effectiveness, whilst its relatively inchoate and 'young' nature has rendered it particularly vulnerable to charges of being excessively disruptive. These structural features have been exacerbated by the activities of the Court of Justice. It has both developed relationships with national courts and litigants that, in functional terms, have acted as surrogate policy processes at the expense of national governments,2 and, through its constitutionalist case law, placed itself at the centre of all debates about the civil and political identity of the Union. These have raised expectations about the capability of EC law to ensure compliance and about the demands in terms of liberal values that can be exerted by it,3 whilst, at times, testing the limits of its acceptance by national government agencies and judges.
It is unsurprising therefore that a rich literature in judicial politics has developed. The debate centres around three themes. There are, first, theses which revolve around institutional politics. These focus on the motivations and behaviour of national courts. On the one side of the divide there are arguments which attribute a calculative frame on the part of the national courts. The possibilities offered by EU law for rent-seeking versus other arms of government,4 other branches of the judiciary5 or simply the opportunities it provides to advance personal policy preferences6 has, it is claimed, influenced national judicial reception of it. They also include arguments, which suggest that the high acceptance of EC law by national judges can be attributed to no prior calculations on the part of national courts but is rooted in notions of judicial identity7 or the absorption of fairly pliant norms into local contexts.8 The second theme centres upon interest group politics. If national courts and the Court of Justice are seen as supplying EC law, these theories suggest that it is policy lites, which provide the demand for EC law.9 The invocation of EC law therefore depends upon the organisation of resources at a national level,10 the presence of repeat litigators11 and the extent to which litigants are excluded by other policy processes. The third theme of debate links the invocation of EC law less explicitly to a narrow institutional context. Instead, it draws a correlation between the level of acceptance and application of EC law and the level of transnational activity.12 Correllations are therefore made between the levels of preliminary references and receptiveness to EC law by national law on the one hand and levels of intra-EC trade on the other.
These themes follow patterns that permeate the broader judicial politics debate.13 Yet, as theories, they share a unique attribute. None have been thoroughly tested. The bulk of the Court's 'constitutionalising' has national courts at its epicenter, as it locates itself in their duties to apply EC law independently of and over national law. In like vein, national courts have acted as interlocutors of the Court of Justice, through their reference of questions of EC law and enforcement of rulings, in virtually all those areas where its judgments have encroached in substantive policy terms on national government autonomy. Any analysis of the depth and contribution of judicial politics to EU integration must therefore use national courts as its principal laboratory. The evidence used for all the above, however, has been scant and unrepresentative. It includes the - for this debate- largely irrelevant case law of the Court of Justice itself;14 the very occasional 'seminal' judgments from higher courts accepting or resisting the formal invocation of EC law;15 those minority of judgments referred to the Court of Justice from national jurisdictions16 or interesting, but unextrapolable, case studies.17
Even to focus on reported cases, as this study does, in its examination of all reported judgments in the United Kingdom between 1971 and 1998 in which EC law was addressed by national judges, has a faute de mieux quality.18 It will not capture extra-judicial legal activity nor will it capture the intensity of the British judicial contribution to European integration, as the overwhelming number of cases, particularly in the lower courts, are not reported, and many of those reported are, in reality, representative actions, whose results will be used to resolve a number of other actions. Moreover, as it is complexity, novelty and legal significance which tend to lead to judgments being reported, these can not be unquestioningly correlated to the broader category of non-reported judgments.19 Two studies in the United States have given empirical weight to the intuitive suspicion that because of the nature of the cases reported, judges there tend to be more aware of their role in the policy-making process.20 In cases involving EC law, where the question of integration is a central binary code of the policy-making process, one would therefore both expect a higher proportion of references and refusals to refer from reported cases. One would also expect a higher percentage of judgments to be reported that are either explicitly 'positive' or 'negative' about EC law. This might be through giving or refusing to give it de iure supremacy, granting significant (or rejecting) institutional authority to the decisions of the Commission or Court of Justice, or judgments which considerably extend the ambit of substantive provisions of EC law or severely restrict or distinguish them.
Nevertheless, a study of reported cases has a representative value in two senses. It is, firstly, indicative of the spread of litigation. If anything, such a study is likely to understate the proportion of litigation in EC law's most heavily litigated areas. For the areas where EC law has been most heavily invoked -tax, social security, labour and immigration - are legal domains which tend to be dominated at first instances by quasi-judicial bodies - Employment Tribunals, Immigration Adjudicators, Social Security Commissioners, VAT Tribunals - whose decisions are only rarely reported. Secondly, a study of reported decisions does capture the amplificatory effects of judicial activity. That is to say it will capture that level of judicial activity that provokes responses in significant legal and non-legal milieus. This is, partly, because all decisions that carry doctrinal weight on anything other than on interlocutory matters, symbolic importance or far-reaching effects on economic or political activity will be reported. It is also important because the act of reporting, by bringing the decision to the attention of legal and other communities, generates those circulatory effects likely to provoke a reaction.
Needless to say, a statistical analysis of those British cases in which EC law was invoked paints a different picture from prior judicial politics accounts. A salient feature is that the bulk of such activity is very narrowly focused. It is narrow not just in the sectors of EU law it covers. It is also narrow in that it covers very few private disputes, and it is narrow in terms of the ideological readjustments that it has provoked. All this, in institutional terms, contributes to understanding why the judicial application of EC law has not provoked more tensions. The threat suggested to administrative autonomy through judicial empowerment has been limited. Moreover, insofar as most EC law is, in practical terms, not judicially enforceable, it has instead been used to augment administrative capacity through its development of administratively-applied norms and networks.
Those areas that were litigated tended to be intensively litigated. This piece examined the reaction to judicial developments of both the British administration and the wider public sphere. It found that, contrary to some assumptions, litigation was not some form of policy-making by stealth. There was a high level of coverage and debate in at least some of the areas that were most intensively litigated. The central variables here were twofold. The first was the extent to which to which the area was dominated by lite competition and political cleavages. The second was the extent of Court of Justice involvement either actively through the preliminary reference procedure, or, passively, through invocation of its case law by domestic courts. Comment and debate, normally adverse, increased in proportion to the extent of this involvement. The reason for this seemed to be that the Court of Justice offered an opportunity structure for 'outsider' lites who had been denied satisfaction in domestic fora. Once a judgment had been made, it was relatively easy, because of the decision-trap, for the latter to block amendments to EC legislation with the consequence that there was heavy polarisation between EC and domestic law.
The third feature that this analysis picked up on was how British courts have positioned themselves within these wider processes. It found that in addition to the traditional constraints mentioned in the literature, which circulate around questions of judicial incentives and judicial identities, there were a number of further features derived from the institutional environment - going to perceptions of what the courts were meant to do - that influenced judicial behaviour. There was no evidence that the judiciary were concerned to protect particular central spheres of British political and legal life from EU intrusion. Resistance was, however, marked where EU law restricted domestic institutions' capacity to secure conformity in British society - whether that conformity takes the form of securing those conditions that sustain and stabilise private relationships and private autonony or whether it takes the form of protecting those institutions, such as criminal or immigration law, which are taken to sustain a common collective consciousness.
The final feature touched by this aspect is the position of the preliminary reference procedure and Court of Justice within all of this. The study found that in most areas there was a very high number of references granted in proportion to those refused. This suggested that in the United Kingdom, at least, the preliminary reference procedure was far closer to a litigant-Court of Justice relationship, with national courts acting as a relay between the two, than a court-court dialogue, as has been suggested by some. In this, crucial to the pattern of references was the pattern of litigant behaviour, and, in particular the remedies sought. Unsurprisingly, they tended to be higher where parties were seeking judicial review than where they were seeking financial remedies. In the former case they made little sense, whereas, in the case of the latter, they secured with the utmost certainty the remedy pursued, namely change of the existing legal settlement, and offered actors considerable publicity for their cause. Yet more broadly, there seemed to be two dynamics that propelled the overwhelming majority of references to Luxembourg. The one was the growth of the regulatory State in the United Kingdom. This had led to on-going relations between industry and public authorities across a variety of fields, with litigation, and preliminary references, increasingly used as a strategy for marking parameters in this enduring process of negotiation and adjustment. The other was interest group politics, where almost exclusively non-commercial interests, used Luxembourg as an opportunity structure for achieving broad domestic legal change that was otherwise impossible to achieve. Both types of action were highly unrepresentative of the other case law.
II. The Conundrum of the Judicial Revisiting of the British Constitutional Settlement
The application of EC law in United Kingdom courts cannot be equated to a form of best-level analysis which involves a simple shift in allegiances from the periphery to the centre by the national courts. It involved a transformation in the relationships the judiciary enjoyed with other arms of government, with the central institutions of civil society and within the judiciary itself.
First, EC law reversed the hierarchy between the British judiciary and the other arms of government. The British constitutional settlement had traditionally been one within which, as the sovereign, Parliament sat at the apex and courts, whilst having extensive powers in the private law field, had very limited ones in public law. They had no powers of legislative review and applied only a weak measure of review over administrative acts which allowed considerable administrative discretion.21 By requiring national courts to disapply administrative or legislative acts which conflicted with it, EC law gave national courts sweeping new powers of legislative and administrative review which placed them at the apex of the constitutional settlement. Furthermore, the new measure of review, that of compliance with EC law, seemed to enable them to intervene sweepingly and more intensively in previously untouched areas of governmental activities.
Secondly, EC law required British courts to mediate a fundamentally different relationship between individual and State. Its monarchist and hereditary trappings aside, the approach of the British constitutional settlement to legal and political life has always been strongly republican in nature. The legitimacy of the hegemony of a majoritarian institution such as Parliament lay in its being the most representative body to enact a corpus of laws best suited to the conditions and mores of British society. The strongly collectivist nature of this vision accords priority to the legal system as a whole in which it mediates between plural interests and individual rights enjoy an essentially derivative role.22 Similarly, politics becomes measured by its success in securing collective goods with individual measures being reviewed against their contribution towards that.23 The EC Treaty, by contrast, was centered around a series of economic freedoms whose ideological foundations were based upon the liberal vision of private autonomy.24 Within the liberal vision, these principles enjoy a transcendental and prior status to any collective settlements. Legal priority is thus given to subjective rights. Likewise, a more self-limiting vision of politics is taken within which as much space is preserved for autonomous behaviour by private individuals as possible.
Thirdly, the application of EC law undermined internal judicial hierarchies. Whilst the division of labour within British courts is not as strong as some jurisdictions, specialised courts exist in, inter alia, the fields of labour law, immigration, tax and intellectual property and only the higher courts (the High Court, Court of Appeal and House of Lords in England and Wales) have powers of judicial review. The system of precedent imposes powerful hierarchies within the system by obliging lower courts to follow prior decisions of higher courts on materially identical questions. EC law subverts these by robbing higher courts of their privileges vis--vis the other arms of government in granting powers of judicial review or legislative review to any body which, acting under governmental supervision contains quasi-judicial procedures to determine EC rights.25 Powers usually reserved for the higher courts26 are not merely granted to all other courts, but also to statutory bodies which often contain lay members and enjoy a hinterland status somewhere between government agency and judiciary.27 EC law also undercuts the authority of higher courts over lower courts by enabling the latter to refer points to the Court of Justice and give authority to Court of Justice rulings on points materially identical to those already decided by higher national courts.28
Fourthly, EC law brought unprecedented administrative intervention into the legal institutions of civil society. Historical sociologists have observed how the development of modern notions of political sovereignty contributed to the development of capitalist economies by enabling the economic sphere to be separated from the political sphere and, through centralised laws, giving political backing to those private property rights that are the mainstay of a capitalist economy.29This was done in many European jurisdictions through the development of civil codes. An 'abeyance' emerged in the British constitutional settlement whereby although Parliament had formal sovereign powers, in practice it seldom trespassed on the autonomy of the common law.30 This allowed the British courts a property over the origins and development of the legal institutions of private law society not enjoyed to the same extent by their counterparts elsewhere. In this, as the roots of the common law lay embroiled in custom, they came to act as central fora for societal self-learning experimentation31 in such a way that it was perhaps easier for British commentators to claim that the common law acted as a mirror for the ethics of British society.32 To be sure, the autonomy of these institutions became subject to increasing legislative and executive intrusion from the end of the nineteenth century onwards.33 Yet EC law still represented a drastic intrusion on the considerable residual autonomy of these institutions. On the one hand, EC competition law interfered in an unprecedented manner with the exchange function of contract.34 On the other EC regulation in fields such as health and safety, environment and consumer law intruded far more intensively than prior British legislation into the risk allocation functions performed by both contract and tort law. These intrusions threatened to generate radical new elisions, dislocations and complexities in the hitherto relatively monolithic institutions of contract and tort.35
To be sure, the picture sketched above of the British constitutional settlement is a simplistic and static one, which has encountered substantial change since 1973.36Even allowing for this, the constitutional resettlement required was not only considerable but encountered three further pressures that all militated in favour of the status quo.
First, the resettlement of power brought about by the application of EC law is essentially redistributive in nature. That is to say that no 'win-win' scenarios exist, as any empowerment of one institutional actor is at the expense of another. Moreover, subject to what will be said below, it is not even possible to locate a constituency that can anticipate clear institutional benefits from the application of EC law. In all instances, the forms of institutional gain brought by EC law had to be set-off against corollary restrictions on autonomy and forms of disempowerment. The eventual 'winners' and 'losers' would depend upon unpredictable modalities of application of EC law eg would more opportunities for judicial review arise more than opportunities for administrative intervention. Furthermore, whilst it was not possible to identify future 'winners', it was possible to identify one clear 'loser', the British Parliament and its surrounding constituency, which seem to be disempowered under any scenario through the possible extension of either executive or judicial power.
Secondly, the British constitutional settlement was, on its face, explicitly structured against this revision. A feature of Parliamentary sovereignty is that Parliament can not formally tie the hands of its successors, and thereby curb its own powers.37 This rendered the application of EC law particularly vulnerable, as all EC law, whether adopted prior or subsequent to accession, takes formal legislative effect within the United Kingdom by virtue of section 2(1) European Communities Act 1972. Any EC legislation was thus in the unique situation that its application was threatenened not merely by subsequent Parliamentary action, but also by Parliamentary measures which preceded it, but took effect after 1 January 1973. This possibility of challenge could either be mounted generally, as happened with the Private Member's Bill curbing the Court of Justice's powers suggested by Ian Duncan-Smith in 1996, or, where there was not a sufficient constituency, more specifically by bringing in legislation that expressly contradicted individual pieces of EC legislation.38 To be sure, such actions would provoke a crisis with other Member States, but this would only provoke immediate costs for the executive. Whilst the executive, through the governing party, usually has had a strong grip on Parliament, where the executive's influence was weak, as was the case of the 1992-1996 Major Government, the likelihood of such a danger increases.
The third obstacle to revision was the traditionalist approach taken to accession. The European Communities Act 1972 only anticipated membership as having significant repercussions for relations between the executive and the legislature through its conferral by section 2(2) European Communities Act of sweeping quasi-legislative powers on the executive to implement, through Orders in Council, EC obligations - normally Directives - that had themselves been negotiated by the executive. In all other respects, its impact was perceived as marginal. Most notably, in the application of Community law, courts were to be confined by section 2(4) European Communities Act to their traditional role of interpreting administrative and legislative acts rather than reviewing them, which sought to resolve potential conflicts between EC law and Parliamentary statutes by requiring the latter to be 'construed' in the light of the former.
Pre-existing conceptions of the constitutional settlement also informed judicial practice through the 1970's and 1980's in a number of ways. In a number of judgments strong deference was made to the prerogatives of the other arms of government and the need for judicial reserve. This was most marked in the approach of the courts to conflicts between EC law and Parliamentary statute. These were to be interpreted away under the fiction that section 2(4) was merely an extension of the practice of interpreting British statutes in the light of its international treaty obligations.39 It was also present in a number of judgments which emphasised the traditional balance of powers between the judiciary and other arms of government.40 Similarly, there was a strong emphasis on preserving judicial hierarchies. Industrial Tribunals were prevented from applying EC law until 1979. Whilst there were isolated instances of lower courts invoking decisions of the Court of Justice at the expense of those given by higher national courts,41 they continued to consider themselves generally bound by decisions of the latter on point of EC law.42 There was also evidence that lower courts felt that referrals to the ECJ should normally only be the prerogative of the higher courts.43 Similarly, EC law was not considered as ousting the exclusive jurisdiction of certain courts do decide certain forms of dispute, even if this excluded other courts from applying EC law.44 Finally, British courts were equally protective about their hegemony over the common law. EC competition law was not envisaged as created any new forms of private action,45 and British courts were reticent to treat as privileged, in private law disputes before them, legal advice given to undertakings in preparation for competition hearings before the Commission.46
On its face, this makes the change brought about in the Factortame saga all the more dramatic.47 Famously, the highest court in the United Kingdom, the House of Lords, accepted the supremacy of EC law and, with it, the power for British courts to review legislative measures for their compliance with EC law. Since then, as a matter of legal doctrine, the formal supremacy of EC law has been entrenched in British law. To be sure, there has been the occassional act of defiance. British courts have departed - temporarily - from the Court of Justice on the legal effects of Directives48 and, more recently, haved noted that the Court of Justice can not, as EC law currently stands, rule generally on the compatibility of national administrative action with fundamental rights norms and on treaties entered into by the United Kingdom prior to EC accession.49 Yet these latter judgments are relatively isolated and have their precursors in similar judgments given by national courts in other EU jurisdictions.50 More broadly, the study carried out also attempted to measure covert resistance, where EC law was not explicitly challenged but devices were used to distinguish its application to a case in hand.51 These made up only 98 cases, 9.01%, of the total, a small number. These tended to be slightly higher, in proportionate terms, in the early years, suggesting that not only has judicial resistance increased as a consequence of the more onerous formal duties imposed by Factortame or EU law's increasing incursion into new fields of policy, but that some process of socialisation took place. This is to be contrasted with the number of rulings which can be contrasted as positive. These were ones that either applied the case law of the Court of Justice directly to the factual circumstances or referred the matter to the Court of Justice,52 as these implicitly accept the interpretive authority of the Court of Justice to the case in hand or in some other way were positive about the application of EC law (eg changed legal aid rules to accommodate EC complaints, accepted the exclusive jurisdiction of EC law, interpreted EC law very widely, relaxed rules of standing). These do not include simple interpretations of EC provisions, but still number 559, a figure that is over five times that of the 'restrictive' cases.53 (Table 3)
This general acceptance and application of EC law would seem to posit in a truly revolutionary manner both the judiciary and the liberal principles contained in EC law at the apex of the British constitutional settlement. Before considering the real nature of this 'revolution', the above does provoke the question, however, why it took over 16 years for the latent conflict between the supremacy of EC law and Parliamentary sovereignty to come to a head. The answer to this question can not lie in the somewhat smug and racist assumption that the British are inately good at meeting their international commitments.54 The quantity of EC legislation produced in this period,55 unanticipated interpretations of EC law by the Court of Justice and some resistance from the executive all made some breaches of EC law inevitable. Indeed, within the period 1973-1989 one finds a number of successful Article 226 EC actions brought against the United Kingdom by the Commission.56
A more likely contributory factor is that British courts, in particular lower courts, had been engaging in a form of subversive legislative review through the 1970's and 1980's, whereby the EC provision was applied directly with the question of the status of the national provision being left unaddressed.57 There is only one instance, prior to Factortame, where a British court went the other way and held that EC law could not void a statute.58 The question did not, thus, arise as a question of constitutional issue, because it was generally resolved in a pragmatic manner by lower courts, whose decisions had little precedential effect, that diffused the issue. Indeed, a striking feature of an intertemporal analysis is the presence of continuities prior and subsequent to Factortame. Moreover, this practice has continued since Factortame. In only two subsequent judgments has the question of suspension of domestic legislation been directly addressed.59 There are several, however, where the EC provision has just been applied over the national one, with its effects on the latter not being discussed.60