Former Chief Justice Frank Clark has criticized the British government’s proposal to pass legislation allowing it to overturn court rulings.
Judge Clark said the proposed plans were a «serious attack» on the rule of law and a «fundamental violation» of the separation of powers.
Last month, British Justice Minister Dominic Raab announced details of how he plans to prevent Strasbourg’s interference in British affairs as part of his reform of human rights law.
He indicated that the British government will seek to establish a mechanism to allow ministers to overturn court rulings, whether issued by the European Court of Human Rights or British judges.
Judge Clark told the Institute of International and European Affairs (IIEA) that if the «strange proposals» found their way into the law, they would «raise questions».
“If you are simply trying to overturn a decision and say, ‘We don’t like this decision,’ and under that it is no longer the decision and something else is the decision, I think that is a fundamental violation of the separation of powers and it would be a serious attack on the rule of law.
Maybe [it is] More direct attack than that which is criticized in some countries where you don’t change decisions, but you have to change judges hoping new judges will come up with different decisions.
«But actually changing their decisions would be, I think, a direct attack on the rule of law.»
He added that it may not materialize:
«Whether they’re going down that road is probably another day’s business, we have to see what’s really going on rather than what people might threaten to happen.
«Sometimes one can be forgiven if one thinks that some of this is only done with a certain audience, and it will in fact manifest itself in a real change which may not be quite as evident as the discourse might suggest.»
Judge Clark also said the EU is sailing into «unlawful legal waters» in relation to the treatments it has in place to punish member states that reject the EU’s rule of law.
The European Court of Justice (ECJ) has fined Poland €1 million per day after a court ruled that basic principles of EU law contravene the Polish constitution.
Earlier this year, the European Court of Justice launched infringement proceedings against Germany for an alleged violation of the rule of EU law.
Judge Clark said the findings of the German and Polish courts were «undermining» the primacy of EU law.
«They certainly do it from the perspective of the national constitution of those countries,» he added.
“As a matter of the European Union, it is clear that the courts of member states are obligated not to apply national laws, including national constitutional laws, that are inconsistent with EU law.
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“One of the problems here is that we are navigating in somewhat unknown legal waters to see what remedies are available for these problems.
The treaties do not contain express measures that can be adopted.
“One of the problems, of course, is the easy way to deal with it would be a procedure to be adopted under the treaties by all the other member states.
“But as long as you have two member states that are not bound by what might be seen as the ‘Brussels Line,’ the practical possibility of adopting those measures, which are the only ones expressly recognized in the treaties, is no longer there.»
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