Category Archives: Constitutionalism

The EU: Democratise or Disintegrate

On 9th February 2016, Yanis Varoufakis, the unofficial leader of the ‘Democracy in Europe Movement 2025’, and a coalition of activists gathered together in Berlin to launch the ‘DiEM25’ manifesto.  They declared: ‘The EU will be democratised. Or it will disintegrate!’

The former Greek finance minister believes the European Union to be a beautiful conception, but accuses it of opaqueness, elitism and furthering “the habitual domination of corporate power”.[1]  Mr Varoufakis is right – at least to the extent that this is a widespread and growing feeling amongst citizens who feel alienated and disempowered across the fledgling European polity. DiEM25 warns that this growing stagnation in democratic legitimacy combined with the growing fragility of European societies faced with economic and technological upheaval and mass migration, is bringing the continent to a critical moment of peril.

“This is the unseen process by which Europe’s crisis is turning our peoples inwards, against each other, amplifying pre-existing jingoism, xenophobia”…“Committed democrats must resolve to act across Europe”.

The manifesto document is light on actual proposals. Those that are presented range from highly feasible reforms – live-streaming European Council meetings and publishing ECB and Eurogroup minutes –  to the grander ambition of convening a European constitutional assembly by 2025. What DiEM25 does do is expose a divergence in the strategy of European unity dating back to the early federalists, a divergence that could ultimately prove to be a fatal flaw.

In 1941, at the height of the most recent and terrible of European civilization’s recurring descents into barbarity, Altiero Spinelli and Ernesto Rossi languished on Mussolini’s prison island – Ventotene. Their internment for anti-Fascist dissent gave them the opportunity to reflect on the origins of totalitarianism and to ponder how best to return Europe to a lasting peace. Together they penned an extraordinary document: the Ventotene Manifesto[2] is an explicitly socialist statement of intent. It refers to the “revolutionary masses” and describes the landowning elites as “thoroughly parasitic”, but it nonetheless rejects the classism of Communist parties, arguing against the dictatorship of the proletariat as the historical means of emancipatory progress. Instead of class struggle they advocated for the ‘Movement for a Free and United Europe’. The greatest strength of Spinelli and Rossi was that they understood the imperative need for Demos. Like the DiEM25 manifesto, the Ventotene Manifesto proposed a constitutional assembly; they desired a federated Europe that was representative and participatory with enough power retained by the federal states to allow for “the development of a political life according to the particular characteristics of the people”. The weakness of Spinelli and Rossi is that they were too eager in anticipating what a free and united Europe could be and do, but treated as of secondary importance the institutional framework needed to construct such a political community. This may be an unfair criticism; they were after all stuck on an island with no knowledge of what the conditions at the end of the war would be. Nonetheless, they predicted that the united Europe would take many industries, particularly steel, into public ownership (some debates never die), whilst also remarking that “it would be superfluous to dwell at length on the constitutional institutions”. They presented a sweeping dream with little clarity of method.

This was not the case for Jean Monnet. In his Memoirs,[3] which should be required reading in the run-up to the Brexit referendum, he emphasised repeatedly: “I distrust general ideas, and I never let them lead me far away from practical things”. This is indicative of his approach to peace-building in Europe; patient wisdom, meticulous attention-to-detail and utilising a remarkable talent for networking. Over several decades, Monnet relentlessly cultivated friendships across Europe, reaching out to intellectuals, politicians, civil servants, businessman and trade unionists, who he convened together in the ‘Action Committee for the United States of Europe’. Despite their grandiose name, the group adopted the strategy of incremental development that can be identified in the contemporary EU: cautious (pre-Eurozone that is) economic integration starting with the strategic industries in the European Coal and Steel Community, treaty negotiations between member states, regulatory mechanisms, civil society and stakeholder engagement, and a gradually constructed institutional framework. These methods are familiar to students who have studied the Neo-Functionalism vs. Inter-Governmentalism debates in political science. They are the crucial difference in approach between the Ventotene Manifesto and that outlined by Monnet in Memoirs. The divergence between the Movement and the Committee. The Action Committee created an elite vanguard which has contributed incalculably to a stable peace in Western Europe…but a peace lacking a Demos. This is not to say that Monnet, Willy Brandt, Max Kohnstamm and the other associates were anti-democratic. Far from it. Monnet was enthusiastic about the United Kingdom because of our “respect for freedom, and the working of democratic institutions.”

Still a ‘democratic deficit’ in the EU has emerged and is not only a theoretical matter, but a real and harmful problem. It must be addressed, but not through Brexit. Nor through regionalist devolution alone. Both of these options risk impotency in an era of neoliberal globalisation. The deference of sovereign states to exterior institutional frameworks will become increasingly necessary in everything from the protection of marine habitats such as the humble seagrass[4], to transnational policing, adaption to mass migration flows and internet governance. Unlike ICANN, IMF, the World Bank and other international governance institutions, the EU has a Council whose members are elected heads of states or governments and an elected Parliament. Moreover, it has an institutional understanding of responsibility for fundamental rights afforded to citizens, grounded in common historical experiences, civilizational heritage and political freedom. This is not nothing; it is something that can be worked on. Democratising Europe will require the bold political imagination DiEM25 are calling for.

[1] The text of the DiEM25 manifesto can be read here: http://diem25.org/wp-content/uploads/2016/02/diem25_english_short.pdf

[2] The text of the Ventotene Manifesto can be read here:http://www.cvce.eu/content/publication/1997/10/13/316aa96c-e7ff-4b9e-b43a-958e96afbecc/publishable_en.pdf

[3] Monnet, Jean, Memoirs, translated by Richard Mayne, William Collins Sons & Co. LTD (Glasgow:1978)

[4] See Project Seagrass statement on the EU: http://www.projectseagrass.org/apps/blog/show/43887552-don-t-let-the-uk-become-a-fish-out-of-water-for-the-sake-of-our-seas-let-s-stay-in-the-eu

The Panama Papers: Reimainging the Moral Force of Law

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Image courtesy of Dronepicr

The release of over 11.5 million documents from Mossack Fonseca, a Panamanian based law firm, has revealed the lengths to which individuals and companies will go to avoid their national tax obligations. When asked about the problem of tax avoidance, President Barack Obama acknowledged that those with wealth can avoid their tax systems when necessary, especially if they have the right lawyers and accountants. ‘A lot of it is legal,’ the President said ‘But that’s part of the problem.’

Those of us interested in the global rule of law and global constitutionalism should pay attention to President Obama’s point. Promoting the rule of law is hardwired into the international normative order. NGOs, international and regional institutions, and well-meaning liberals argue that law rather than politics ought to guide decisions at the global level. As John Adams, American founder and president maintained, we want a ‘government of laws and not of men’.

But law is not divorced from politics, either at the international or domestic level. A legal system results from political decisions, and those political decisions result, in part, from power configurations. Perhaps we ought to abandon our quest for the rule of law and recognize what Marxists have long emphasized, that law simply reflects a social and economic reality which, for all its pretentions, it cannot transcend. If this is true, does this mean that the quest for the rule of law is nothing but a chimera at the global level?

I’m not ready to give up on the rule of law. Without it, violence and coercive power would dominate the world order. The argument of those working in the realm of global constitutionalism is that we need not abandon the hope of a rule governed order. There must be some way to harness power and law to produce a more just and equal political order.

At the domestic level, this can come about either through representative government, although realizing truly representative institutions which are not tainted by injustice is no easier at the domestic than at the global level. Revolutionary movements to advance the cause of equality and justice are another means, one that has created the representative systems we have in many countries around the world. There is no representative institution at the global level, so perhaps we are left with the revolutionary model?

A third way might be through the device of constituent power. Constituent power is the act of a people to establish its political order through the creation of its constitution. Constitutional conventions remain the paradigmatic instance of constituent power. But as Jason Frank has argued, the constitutional convention is not the only constituent power moment; a constitutional system results from continued engagement of the people with its legal and political order. Those engagements can at times be conflictual and even revolutionary, but at other times they may be more prosaic. The point is that such constituent moments need cultivation and attention, and need to be recognized as such in order to give them the power to shape and reimagine a political order.

Does constituent power exist at the global level? If we name political protests, NGO activism, and forums in which activists and political leaders meet to articulate new agendas and ideas, then perhaps we do have something like this. Especially if those activists articulate their claims in the language of rights, law and democracy, they may well count as efforts to constitutionalize the global order.

The activism of the International Consortium of Investigative Journalists which released the Panama Papers demonstrates how those engaged in the protection of free speech and hardnosed journalism – classical liberal virtues that keep lawmakers honest in domestic societies – provides an instance of global constituent power. This organization does not represent anyone, but constituent power is not just about representative democracy; it is also the moral force that ensures constitutional orders remain true to their purpose.

President Obama is right in recognizing that tax havens are legal. But the constituent power of those who revealed the failure of global law gives us hope that global justice is possible when we make use of the emancipatory potential of law to advance rights and equality around the world. Recognizing the release of the Panama Papers as an instance of global constituent power can play a small but significant role in advancing that agenda.

Anthony F Lang, Jr holds a Chair in International Political Theory in the School of International Relations at the University of St Andrews and is Director of the Centre for Global Constitutionalism.

Image courtesy of Dronepicr

CGC Blog Competition – Closing Date Friday 8 April

Blog Competion

1st prize £60
2 runners up prizes of £30 each

To launch our new blog posts page we invite submissions of articles & blog posts (max 1000 words) from undergraduate & postgraduate students at the University of St Andrews.

Posts should address relevant contemporary issues related to the Centre’s interests including constitutionalism, the rule of law, politics, ethics, human rights or justice. The winning and runners up posts will be published on the CGC Blog Posts Page and Global Politics Magazine. Outstanding submissions not winning a prize may also be published at the Centre’s discretion.

Relevant contemporary issues may include but are not limited to the European refugee crisis, the UK’s place in the EU, Scotland’s place in the UK, political or constitutional events in specific countries or globally, conflict, climate change, human rights around the world. Successful entries will address the contemporary issue within the context of constitutionalism or the Centre’s other interests.

Please submit your blog post / article with your Matric No to globcon@st-andrews.ac.uk by Friday 8 April.

Solidarity or Self-interest? European Integration and the German Question

Image by Marcio Cabral de Moura

Image by Marcio Cabral de Moura

This article by David Miles was originally published by The Carnegie Council for Ethics in International Affairs in Carnegie Ethics Online on 17 August 2015.

In Klaus Harpprecht’s 1995 biography of Thomas Mann, he highlights a statement which Mann wrote in 1947, which, as Harpprecht puts it, “one reads with a distinct shiver half a century later”:

In barely 50 years […] Germany will, in spite of everything, have all of non-Russian Europe in its pocket, as Hitler could already have if he had not been so impossible.

Less than 50 years later and the country was reunified, but it was a more restrained Germany on the European stage, deeply aware of its past and struggling to bear the economic burden of incorporating East Germany into the West German republic. Still, Mann was in many ways correct, for it is Germany’s financial might and its very deep resources which have so far kept the European integration bicycle pedaling forward. Yet as the recent negotiations over the third bailout of Greece illustrated, there are signs that Germany’s largesse and its willingness to sacrifice its own interests for the sake of the European project have definite limits.

Twenty-five years ago, everything seemed possible. “Do you realize that you are sitting opposite the direct successor to Adolf Hitler?” Chancellor Helmut Kohl said to an astonished Timothy Garton Ash shortly after re-unification. It was evident, said Ash, that as the first chancellor of a united Germany since Hitler, Kohl was profoundly conscious of his historical duty to do things differently.

Germany today is earnest in its desire to be a good European neighbor, but it does not believe that it can or should pay any cost as part of this role. One problem is that economic, not ethical values have become the lodestone of the European Union. As a hybrid construct, the EU lacks the societal dimension which, within the nation-state, is the critical element that allows one group of people to identify with another and which legitimize government actions designed to help one part of the community at the expense of another. People in London or New York accept, perhaps grudgingly, that their tax pounds and dollars may be used to fund projects for the benefit of people in Cardiff or New Orleans. They accept this because they recognize the others as being members of the same community.

Most liberal democratic states in the West succeed by having political and constitutional processes in place which legitimate policy choices that help one part of a society at the expense of another. Here, it is both the acceptance of the specific legitimation process by people (i.e. its constitutional and political processes) AND people’s recognition that they inhabit a common society that ultimately justifies taxation and spending decisions. As Keith Whittington of Princeton puts it, “constitutions cannot survive if they are too politically costly to maintain and they cannot survive if they are too distant from normal political concerns.”

This is a lesson which European, principally Franco-German leaders, often for the best of motives, have refused to take on board over decades. To understand their reluctance to consult with or seek to understand the opinion and belief of the people and the dilemma this has created for the EU, one must recognize the particular type of limited representative democracies which were established in Europe after the Second World War. If a constitutional system could bring the Nazis to power through a democratic election, as happened during the Weimar Republic, this was proof, especially to West Germany’s founders, that to prevent a country committing democratic suicide there had to be certain entrenched principles of democracy and of human rights that neither the people nor their representatives could change. At the state level these “highly constrained” democracies, as Jan Werner-Müller puts it, were characterized by unelected institutions (such as constitutional courts), while at the supra-national level European integration was meant to impose “further constraints on nation-state democracies through unelected institutions.”

Following the fall of the Berlin Wall and faced with the prospect of a reunited Germany, French president François Mitterand sought to ensure that German reunification could only happen in parallel with the further integration of Europe, thereby binding Germany’s future to that of Europe. Mitterand told Germany’s foreign minister Genscher in November 1989 that if Germany did not commit itself to the European monetary union, “We will return to the world of 1913.” In Helmut Kohl, Mitterand had a partner who recognized that Germany would have to sacrifice its self-interest to reassure the rest of Europe. It was a policy, as Harold James put it, “derived not only from concern with foreign reactions to German power, and a French wish to harness Germany, but also from a German fear of German power.” This meant giving up the symbol of its post-war strength and stability – the Deutschmark – and committing the country to the European integration project by agreeing to monetary union (EMU). Closer union and EMU were the price that Germany had to pay to reassure its most important neighbor, France. In the heady days of German reunification the normative quest to be ‘the good neighbor’ in a new Europe had a special potency. But how much would Germany be willing to pay to play this role?

Those who criticize Germany for the ‘mental waterboarding‘ of Greece should recall the grumbling in the former West German states over the huge transfers of taxpayer wealth to the former East German states since reunification in 1990. Even today after approximately 2 trillion euros of investment in East Germany, German taxpayers still see a deduction on their paychecks for the so-called ‘Solidaritätszuschlag‘—the solidarity tax. If bailing out their own compatriots was done through clenched teeth, one immediately sees why additional money transfers to southern Europe to bail out Greece or other countries is for many Germans beyond the pale. Yet such fiscal transfers are seen by economists as the absolute pre-requisite necessary to make the eurozone work long-term.

The flaws in European monetary union that became so apparent at the start of the eurozone crisis in 2011 were to some commentators confirmation of just how ill thought-out it had been to allow different countries to share a currency without a political or fiscal union, and without any transfers of money from the stronger to weaker performing parts of Europe. Yet the flaws in monetary union were not just anticipated, but had been predicted from the outset. Far from being a project based on rosy expectations, those driving European integration embarked upon monetary union with the very belief that a crisis would develop at some point, since it was precisely through such challenges that the European cognoscenti in Paris, Bonn, and Brussels believed that closer political and fiscal union would develop. In a very prescient piece in Foreign Affairs from 1998, Timothy Garton Ash laid bare the delusion underlying the ‘crises will make Europe stronger’ fallacy: “It is a truly dialectical leap of faith to suggest that a crisis that exacerbates differences between European countries is the best way to unite them.”

Thinking Strategically, Thinking Morally

Supporters of the EU argue, often persuasively, that its success in promoting stability since World War Two can also be viewed as achieving a fundamentally moral purpose in preventing bloodshed and establishing the conditions in which societies might prosper and pursue policies that are both liberal democratic and ethical in nature. However, others like Robert Kagan have argued that Europe’s ability to operate and prosper in a post-modern utopia after 1945 was only possible because of the American-backed NATO security blanket which underwrote Europe’s capacity to pursue its liberal economic and social democratic policy desires, while safely being able to ignore thorny and usually scary geopolitical questions.

During the frantic negotiations over the Greek debt crisis in late June and July, the intervention by the U.S. government on behalf of Greece was noteworthy. The United States sees the geopolitical position of Greece between Europe and the Middle East as critical to the integrity of NATO’s south-eastern flank. Especially ironic was that it was the U.S., the citadel of free market capitalism and neoliberalism, that was having to remind social democratic European states about the risks of Greece crashing out of the eurozone due to a failure of European solidarity and compassion.

More problematic is whether most European leaders today are even capable of thinking strategically in geopolitical terms, given the dominant role of the U.S. in defending the continent during the Cold War. If thinking strategically can also involve acting (or appearing to act) morally, then the Marshall Plan after World War Two was certainly an example of how to turn bitter enemies into the staunchest of allies. It is far easier to turn so-called ‘solidarity’ into hostility or enmity, as eurozone leaders risk doing over Greece.

On one level, Angela Merkel is right to stress the importance of Europe getting its house in order to meet the economic and social challenges of the future. Her favorite statistic, as John Mickelthwait and Adrian Wooldridge note in their new book The Fourth Revolution, is that the European Union accounts for 7 percent of the world’s population, 25 percent of its GDP, and 50 percent of its social spending. Europe’s long-term crisis of a declining working age population and people living longer is indeed a serious one, and when the chancellor mentions this statistic, as she did at the World Economic Forum in 2013, it is intended every bit as much for a French audience as for any in southern Europe. The eurozone cannot work in the long-run unless France reforms its economy and introduces the same sort of efficient working practices as Germany, and increases its pension age further. Such French reforms seem unlikely at present, forcing Germany into the position of lobbying for institutions which will bring fiscal, budgetary, and, ultimately, political union closer, but knowing full well that such institutions will be impotent if France doesn’t or can’t play ball when it comes to enforcing rules. Germany, which agreed to monetary union to ameliorate French concerns over reunification, finds itself playing Oliver Hardy to the French Stan Laurel: “Here’s another fine mess you got us into.”

The conundrum which has thus far proved impossible for the EU (as it is currently constituted) to solve is that the bloodless grey institutions which might make Europe function effectively as an economic entity are likely to make it fail as a social democratic project. Reliance on economic orthodoxy at the expense of a set of values that European citizens could relate to has led to growing disenchantment with mainstream parties of the center-left and center-right across the EU. In their 2013 study “The ‘Bubbling Up’ of Subterranean Politics in Europe,” Mary Kaldor and Sabine Selchow found that those who have engaged in new forms of social mobilization and political activity across Europe have cited concern about the failure of democracy as the reason for the engagement and protest. The study found that Europe was ‘invisible’ in public displays of subterranean politics, and when it was visible it was generally regarded as part of the problem as much as part of the solution.

Part of the problem with the rationalist emphasis on process and rules is that the human dimension of Europe has got subsumed underneath the technocrat-heavy institutional architecture found in Brussels. As far back as 2005, well before the financial crisis and eurozone crisis hit, EU commissioner Joe Borg addressed the disconnect between the EU and its people: “As the European Union advances, it seems that we are losing the European citizen somewhere along the way.”

One issue is that until the 1990s, European citizens were rarely asked directly in the form of referenda whether they wanted the ‘ever closer union’ specified in the Treaty of Rome. Nevertheless, as Timothy Garton Ash notes, “for about 40 years, the project of European unification could rely on at least a passive consensus among most of Europe’s publics.” With memories of the Second World War still so vivid this was understandable. Equally compelling as a driver of European integration was the external threat posed by the Soviet Union, but when that began to dissipate in the late 1980s, and then German reunification became a reality, Europe had to discover a new raison d’etre for itself, and also find a way of incorporating a country the size of Germany (“too big for Europe, too small for the world” in Kissinger’s words) into a re-energized European integration project.

Reports of Europe’s Demise are Premature

European integration has revolved around firstly building an institutional framework for Europe, and then hoping that a European identity would develop in time alongside national identities. As former Polish foreign minister, Bronislaw Geremek observed, “Now that we have Europe, we need Europeans.” However, Rome wasn’t built in a day. As Walter Murphy observed, even 75 years after the establishment of the United States government, Jefferson Davis and Robert E Lee still considered themselves citizens of their states first, of the South second, and of the “United States” last.

The European project, with all of its messy contradictions, is still better than any of the political alternatives. One need only look at some of the unappealing political figures (andPutin admirers) wanting the European Union to fail, such as Marine Le Pen, Nigel Farage, and Geert Wilders to recognize what a giant step back it would be economically and politically for Europe to return to a continent of feuding, self-interest, and parochial nationalism.

To find an antidote to these right-wing sirens of division and recrimination one need look no further than Eastern European countries such as Slovakia, Poland, Latvia, and Lithuania—states that lived under the shadow of the Soviet Union, and now, Putin’s Russia. As important as NATO membership is to these countries, the values of the European Union are about more than pure economics. For many of these countries, the values of the EU also symbolize their own journeys towards liberal democracy. As one Polish politician put it to Gideon Rachman shortly before his country joined the EU: “Imagine there is a big river running through Europe. On one side is Moscow. On the other side is Brussels. We know which side of the river we need to be on.”

Issues like migration, terrorism, climate change, and drug trafficking cannot be effectively tackled by nation-states acting alone. The logical and practical reasons why everyone (except perhaps terrorists, drug smugglers, and Farage et al) should want the European project to succeed are manifest. Young people from every member state of the EU have benefited from the opportunities to work, study, and travel throughout Europe, often with the support of immensely successful cultural exchange schemes like Erasmus.

A more heartfelt attachment to the idea of Europe may still be some way off; but, as Robert Schuman put it in 1950, “Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity.”

The crisis of confidence in the EU since the eurozone crisis is more than simply a question of democracy, legitimacy, and allowing people more opportunities to participate in political processes. It also reflects a much more fundamental question about the type of society that people wish to live in, which, as we have seen with the independence movements in Scotland and Catalonia, is as much a challenge within states as for supra-state bodies like the EU.

The challenge for the European Union and its member states, particularly Germany, is in balancing the often incongruous demands of co-operation and self-interest, and thus demonstrate to their own citizens that concrete achievements can still create a Europe of solidarity and prosperity as Schuman envisaged.

David Miles is a Carnegie Scholar at the University of St Andrews researching the relationship between judicial review and majoritarianism within Anglo-American and German constitutionalism. He is an associate fellow at The Centre for Global Constitutionalism, and is managing editor of Global Politics Magazine.

Image courtesy of Marcio Cabral de Moura

Magna Carta Roundtable Discussion

Pic Alan Richardson Dundee, Pix-AR.co.uk Free to USE Round table discussion on the Magna Carta

Pic Alan Richardson Dundee, Pix-AR.co.uk 

Professor Nick Rengger of the School of International Relations hosted a roundtable discussion on Monday 18 May, Magna Carta: A Global Charter of Liberty for the 21st Century? Participants included Professor Thom Brooks of Durham University, Professor Malik Dahlan of Institution Quraysh (and executive committee member of Harvard Law School), former ECJ judge, Professor Sir David Edward QC of Edinburgh University, and Professor John Hudson. The event was jointly organised by the School of International Relations and the Centre for Global Constitutionalism to discuss the significance of Magna Carta in its 800th year.

Prior to the discussion the participants enjoyed a visit to Martyrs Kirk to view some of the oldest and rarest items in the University’s Special Collections, including the Papal Bull from 1413.

Pic Alan Richardson Dundee, Pix-AR.co.uk

Pic Alan Richardson Dundee, Pix-AR.co.uk

CGC Working Paper No. 2: Constitutional Fragments: On the Interaction of Constitutionalization and Fragmentation in International Law

Anne Peters , “Constitutional Fragments: On the Interaction of Constitutionalization and Fragmentation in International Law”, CGC Working Paper No. 2 (April, 2015) 1-42.

Click here for PDF: CGC Working Paper No 2 Constitutional Fragments

 

The Draft Scotland Bill and Parliamentary Sovereignty: Legal and Political Effects

Image by drgillybean

Image by drgillybean

Following the completion of the Report of the Smith Commission for Further Devolution of Powers to the Scottish Parliament, Mark Elliott has written a pointed piece on the legal and political effects, which he argues must be strictly separated.

The Draft Scotland Bill would insert into the Scotland Act 1998 a new section 1(1A) providing that:

A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements.

Elliott argues that it is unclear whether “any provision purporting to make the Scottish Parliament permanent would be worth the paper upon which it was printed” due to the doctrine of Parliamentary sovereignty, the absoluteness of which he sees as having been confirmed by LJ Laws in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151: “Being sovereign, [the UK Parliament] cannot abandon its sovereignty.” Elliott believes that given Parliamentary sovereignty, the provision would “lack any legal effect whatever” and that “its consequences are likely to be entirely symbolic.”

Disagreeing somewhat with Elliott, Kenneth Campbell QC does not believe that one can dismiss the legal effects of the proposed legislation so easily, given recent UK Supreme Court rulings. On one important level, this disagreement hinges on the rule of recognition governing how legal rules are recognised within a state. Campbell is right to highlight that in the UK, our rule of recognition is that “whatever the Queen-in-Parliament enacts is law.” It follows, says Campbell, that if this is correct, then the proposed changes should be expected to have legal effects. Here, Campbell suggests that rulings of the UK Supreme Court since devolution may now be pointing towards a tentative recognition that Parliamentary sovereignty may be becoming more limited in a domestic context, quite apart from the already understood and accepted limits imposed by the effects of EU law and the Human Rights Act 1998.

Campbell writes:

“Judicial recognition of constitutional statutes since Thoburn v Sunderland City Council [2002] EWHC 195(admin) [2003] QB 151 has been cautious, but has been affirmed by the Supreme Court, and specifically in the context of devolution: BH v Lord Advocate [2012] UKSC 24; 2012 SC(UKSC) 308, per Lord Hope para 30. Likewise, again in devolution case-law before the Supreme Court, Lord Hope expressly left open the question of whether the supremacy of the UK Parliament is absolute or may be subject to limitation in exceptional circumstances:AXA General Insurance v Lord Advocate [2011] UKSC 46; 2012 SC(UKSC) 122, paras 50 & 51.”

Concluding, Campbell argues that:

“Taking the Supreme Court case-law together with the ‘Scotland clauses’, I suggest that a definite and entirely domestic boundary of Parliamentary supremacy is emerging. That is the meaning and intent of these clauses of the Scotland Bill.”

The interesting aspect of the divergence of views, as I see it, is between Elliott’s theoretical distinction between political (or symbolic) effects and legal effects on the one hand, and on the other, Campbell’s belief as a practising advocate and barrister that what constitutes legal effects must also include (a) legislative intent, (b) how the highest UK court now interprets that intent, and (c) the legitimacy that comes from political recognition of devolution.

Something that Professor Neil MacCormick wrote in 1995 seems relevant here:

“Legal authority […] is empty without general acceptance in a society of the decisions taken by those in authority. Without the backing of political power this cannot practically be achieved.” [1]

Overall, it seems to me that Neil MacCormick’s view on the relationship between legal authority and political authority supports Campbell’s belief that we cannot simply judge the proposed Scotland Bill according to either positive law, or on pre-devolution and Diceyan understandings of Parliamentary sovereignty. We must also recognise that as the constitutional ground continues to move below our feet following the independence referendum, how we judge the ‘legal effects’ may depend much more on what is seen as politically legitimate than we have perhaps been used to before in the UK.

Image courtesy of drgillybean

[1] Neil MacCormick, ‘Sovereignty: Myth and Reality’, Scottish Affairs, 11 (1995). p.4.

David Miles is a Carnegie Scholar researching Anglo-American and German constitutionalism and is an Associate Fellow at the Centre for Global Constitutionalism. He is also Managing Editor of Global Politics Magazine and is a contributor for the Scotsman, the Daily Beast and Huffington Post. 

Could parity principle for UK nations on EU referendum veto be basis for reformed second chamber?

Will Self has written a cogent, pointed, and important piece in the New Statesman which echoes some of the points made by Sir David Edward about the House of Lords and parliamentary sovereignty in his recent lecture at St Andrews. Self takes aim at the House of Lords and argues, following  Professor Colin Kidd, that reform of the Lords could adopt the model of Germany’s upper house, the Bundesrat, as a legislative chamber representing the nations and perhaps regions of the United Kingdom.

One key question, picking up on the post-referendum tensions, will be whether a new upper house for the UK should be constituted on a basis which accords equal representation to the four constituent nations of the United Kingdom, or at least provides a veto to each nation on important issues? The immediate political test for whether reform of the upper house might proceed on such terms may occur when the bill for an EU referendum comes before Parliament. The SNP has promised to table an amendment to any EU referendum bill requiring that any decision to leave the EU must be backed by a majority of voters in each of the four nations of the UK. While the reaction from eurosceptic Conservatives and UKIP would be predictably hostile, David Cameron could see such a veto amendment as a political lifeline, allowing him to criticise the EU as much as he wishes, safe in the knowledge that there are unlikely to be majorities in all four nations to leave the EU. Whether, as Will Self implies, there would be the political will among the UK parties to entrench permanent constitutional parity between the four nations in a reformed UK second chamber, perhaps through a veto or super majority provision, remains to be seen.

 

 

 

CGC Working Paper No. 1: The Constitutional Implications of the Scottish Referendum

25 September 2014 – David Edward, “The Constitutional Implications of the Scottish Referendum”, CGC Working Paper No. 1 (Sept 2004)  1-16.

Click here for PDF: THE CONSTITUTIONAL IMPLICATIONS OF THE SCOTTISH REFERENDUM