Constitutional Review Roundtable with the NPC Legislative Affairs Commission

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On 18th October 2018, the Great Britain-China Centre (GBCC) held a roundtable discussion with a delegation from the National People’s Congress Legislative Affairs Commission (LAC) and leading UK-based experts on approaches to ‘constitutional review’ in the UK and China.

The LAC is a working commission of the Standing Committee of the National People’s Congress (NPC), China’s highest legislative body responsible for legislative drafting and revision.  The delegation, led by the LAC’s vice-chair Mr Zhang Yong and comprised of members of the LAC’s regulations filing and review department, are undertaking a multiyear series of study visits to countries with strong histories of robust constitutional review. The delegation head stated that “reforming China’s system of constitutional review mechanisms is a key priority for the country’s legal development”. Having studied systems in Germany, Spain, France and the US, the central question to the delegation’s visit to the UK was: how does the UK protect constitutional rights without a written constitution?

Leading UK-based legal experts on the rule of law, constitutional rights and the Parliamentary process, and comparative Chinese and British legal issues, joined GBCC’s assistant director Kathryn Rand, who moderated the roundtable. Participating experts included:

  • Murray Hunt, director of the Bingham Centre for the Rule of Law
  • Dr Jack Simson Caird, senior research fellow, also from the Bingham Centre, and former constitutional law specialist in the House of Commons Library
  • Dr Wu Qianlan, assistant professor at the University of Nottingham
  • Ewan Smith, research fellow at Jesus College, University of Oxford

The LAC were particularly interested in technical questions in relation to establishing sound constitutional review structures and mechanisms; the UK’s experiences with constitutional review and the difference between legally binding mechanisms and soft, normative ones; and how to adjudicate conflict between secondary legislation and the constitution. Mr Zhang commented that as more power has been devolved to a lower level in China, this has resulted in a proliferation of local laws, all of which must be consistent with the country’s constitution.

Murray Hunt opened proceedings by outlining how the UK’s unwritten constitution is derived and comprised of various sources of law. He discussed constitutional review mechanisms in the UK in view of the unwritten constitution and common law system, as well as referencing the 800-year development of the rule of law in the UK since the signing of the Magna Carta.

Dr Jack Simson Caird explained that the UK does not have one single constitutional review mechanism, but rather a system with a range of tools, including scrutiny committees, such as the House of Lords Secondary Legislation Scrutiny Committee. Murray Hunt also explained the role of the Joint Committee on Human Rights, a Commons-Lords joint select committee that scrutinises legislation from range of different sources, including international and European human rights instruments.

Ewan Smith detailed how specific sections of the UK’s Human Rights Act 1998 provide for constitutional review of legislation. He also referred to specific cases of constitutional review, such Fitzpatrick v Sterling Housing Association Ltd. Heard by the Judicial Committee of the House of Lords, the final court of appeal in the UK at the time, this case defined the nature of ‘the family’ in the Rent Act 1977, which secured greater rights for same-sex couples. Dr Wu Qianlan outlined constitutional review as undertaken by the UK’s independent judiciary, as well as the process of declarations of incompatibility with the Human Rights Act such as in relation to discrimination in terrorism cases.

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UK experts also asked the delegation technical questions relating to China’s constitutional review mechanisms, and specific instances in which the rule of law has been upheld through constitutional review of non-compliant laws. Mr Zhang highlighted a recent case in Hangzhou in which a lower level municipal law was deemed incompatible with China’s constitution. This led the the LAC to issue an official memo to revoke the noncompliant legislation, which was seen as infringing on citizens’ rights. He also explained there are three ways for incompatible laws and complaints to be brought to light:

  • Individual citizen complaint letters to the NPC LAC
  • During the electronic law and regulation filing stage
  • Local agencies self-reporting and monitoring constitutional compatibility

The roundtable was a fascinating discussion between experts about issues central to our respective political and legal systems. GBCC has worked with the NPC LAC on various aspects of economic and social legal reform, rule of law and international exchange, and we look forward to continuing engagement, sharing experience and best practice.

Date posted: 09 November 2018

Categories: Rule of Law

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