Reforming the United Kingdom Constitution: Law,Convention, Soft Law

The Governance of Britain Green Paper continues the programme of constitutional reform begun in 1997, and appears to reinforce the juridification of the UK's constitution. Nevertheless, several key reforms will be implemented not by legislation, but by creating new conventions. This article argues that such ‘declared’ conventions are best understood as a form of constitutional ‘soft law’, which attempt to influence constitutional behaviour rather than generating binding norms. Applying a regulatory analysis, it then argues that the case for a soft, rather than hard law approach to constitutional reform is weaker than its widespread use in the UK suggests. Finally, the article challenges the thesis that the political constitution is being replaced by a legal constitution, arguing that the government's attitude to constitutional reform still exhibits basic characteristics of political constitutionalism. Moreover, there is more to contemporary constitutional developments than a bipolar contest between political and legal constitutionalism.     

The Historical Overview of the Constitutional Reforms towards Limited Leadership in Tanzania

This paper points out the historical origins of most of the powers that are enjoyed by the President of the United Republic of Tanzania today. This is in essence a contribution to the current debate in Tanzania as to whether there is a need to cut down the broad powers of the President under the Constitution of the United Republic of Tanzania. In its historical perspective, the discussion proceeds by first comparing the powers of the President of Tanzania with those of the former colonial Governor. Having demonstrated the re‐institution of these powers after Independence, through the Republican Constitution of 1962, and the way they were utilized between 1965 and 1992, it is shown that the constitutional and political reforms that took effect from 1992 to date have not sufficiently addressed this problem. The paper proceeds to examine the work of the ‘Committee for the Collection of Views on the Constitution’ of 1999, which was given an opportunity to bring reform in this area, but which according to the author was not sufficiently effective in this regard.     

'Solange, chapter 3': Constitutional Courts in Central Europe—Democracy—European Union

Abstract: Soon after the accession of eight post‐communist states from Central and Eastern Europe to the EU, the constitutional courts of some of these countries questioned the principle of supremacy of EU law over national constitutional systems, on the basis of their being the guardians of national standards of protection of human rights and of democratic principles. In doing so, they entered into the well‐known pattern of behaviour favoured by a number of constitutional courts of the ‘older Europe’, which is called a ‘Solange story’ for the purposes of this article. But this resistance is ridden with paradoxes, the most important of which is a democracy paradox: while accession to the EU was supposed to be the most stable guarantee for human rights and democracy in post‐communist states, how can the supremacy of EU law be now resisted on these very grounds? It is argued that the sources of these constitutional courts’ adherence to the ‘Solange’ pattern are primarily domestic, and that it is a way of strengthening their position vis‐à‐vis other national political actors, especially at a time when the role and independence of those courts face serious domestic challenges.     

Riders on the Storm: Wales,the Union,and Territorial Constitutional Crisis

The United Kingdom continues to undergo a rapid process of constitutional change, with an ongoing redistribution of law‐making and governmental powers to different parts of the Union under an expanded rubric of ‘devolution'. This article illuminates a pervasive sense of territorial constitutional crisis and opportunity in the most recent period, familiarly associated with, but not confined to, Scotland. Constructive and flexible federal‐type responses inside a famously uncodified constitution are championed. Wales, commonly treated as a junior partner in the United Kingdom, presents special challenges for constitutional and legal analysis and distinctive perspectives on the Union which have not received the attention they deserve. In tackling this deficiency, the article elaborates a ‘new Union’ concept of a looser and less hierarchical set of constitutional arrangements in which several systems of parliamentary government are grounded in popular sovereignty and cooperate for mutual benefit.     

Democratic Legitimacy in the Bund or ‘Federation of States’: the Cases of Belgium and the EU

Carl Schmitt developed the concept of the ‘federation of states’ (Bund) in order to characterise intermediate constitutional systems which are integrated beyond the level of a confederation (Staatenbund) without, however, acquiring the level of integration of an actual federal state (Bundesstaat). In this paper we analyse the constitutional specificity of the ‘federation of states’ and present three normative principles for assessing the democratic legitimacy of the decision‐making procedures within such a federation. We argue that both the European Union and Belgium can be analysed as instances of such a federation of states and show how this characterisation improves our understanding of the evolutionary dynamics of both polities and the constitutional and democratic challenges they are facing.     

All Bark and No Bite: Notes on the Federal Constitutional Court's 'Banana Decision'

The Federal Constitutional Court's banana decision of 7 June 2000 continues the complex theme of national fundamental‐rights control over Community law. Whereas in the ‘Solange II’ decision (BVerfGE 73, 339) the Federal Constitutional Court had lowered its standard of review to the general guarantee of the constitutionally mandatorily required minimum, the Maastricht judgment (BVerfGE 89, 155) had raised doubts as to the continued validity of this case law. In the banana decision, which was based on the submission of the EC banana market regulation by the Frankfurt‐am‐Main administrative court for constitutional review, the Federal Constitutional Court has now confirmed the ‘Solange II’decision and restrictively specified the admissibility conditions for constitutional review of Community law as follows. Constitutional complaints and judicial applications for review of European legislation alleging fundamental‐rights infringements are inadmissible unless they show that the development of European law including Court of Justice case law has since the ‘Solange II’ decision generally fallen below the mandatorily required fundamental‐rights standard of the Basic Law in a given field. This would require a comprehensive comparison of European and national fundamental‐rights protection. This paper criticises this formula as being logically problematic and scarcely compatible with the Basic Law. Starting from the position that national constitutional courts active even in European matters should be among the essential vertical ‘checks and balances’ in the European multi‐level system, a practical alternative to the Federal Constitutional Court's retreat is developed. This involves at the first stage a submission by the Federal Constitutional Court to the Court of Justice, something that in the banana case might have taken up questions on the method of fundamental‐rights review and the internal Community effect of WTO dispute settlement decisions. Should national constitutional identity not be upheld even by this, then at a second stage, as ultima ratio taking recourse to general international law, the call is made for the decision of constitutional conflicts by an independent mediating body.     

Constitutional Balance in the EU after the Euro‐Crisis

This article analyses how the European Union's response to the euro‐crisis has altered the constitutional balance upon which its stability is based. It argues that the stability and legitimacy of any political system requires the structural incorporation of individual and political self‐determination. In the context of the EU, this requirement is met through the idea of constitutional balance, with ‘substantive’, ‘institutional’ and ‘spatial’ dimensions. Analysing reforms to EU law and institutional structure in the wake of the crisis – such as the establishment of the ESM, the growing influence of the European Council and the creation of a stand‐alone Fiscal Compact – it is argued that recent reforms are likely to have a lasting impact on the ability of the EU to mediate conflicting interests in all three areas. By undermining its constitutional balance, the response to the crisis is likely to dampen the long‐term stability and legitimacy of the EU project.     

Delegation of Regulatory Powers in a Mixed Polity

It is a common place of academic and political discourse that the EC/EU, being neither a parliamentary democracy nor a separation‐of‐powers system, must be a sui generis polity. Tocqueville reminds us that the pool of original and historically tested constitutional models is fairly limited. But however limited, it contains more than the two systems of rule found among today's democratic nation states. During the three centuries preceding the rise of monarchical absolutism in Europe, the prevalent constitutional arrangement was ‘mixed government’—a system characterised by the presence in the legislature of the territorial rulers and of the ‘estates’ representing the main social and political interests in the polity. This paper argues that this model is applicable to the EC, as shown by the isomorphism of the central tenets of the mixed polity and the three basic Community principles: institutional balance, institutional autonomy and loyal cooperation among European institutions and Member States. The model is then applied to gain a better understanding of the delegation problem. As is well known, a crucial normative obstacle to the delegation of regulatory powers to independent European agencies is the principle of institutional balance. By way of contrast, separation‐of‐powers has not prevented the US Congress from delegating extensive rule‐making powers to independent commissions and agencies. Comparison with the philosophy of mixed government explains this difference. The same philosophy suggests the direction of regulatory reform. The growing complexity of EC policy making should be matched by greater functional differentiation, and in particular by the explicit acknowledgement of an autonomous ‘regulatory estate’. At a time when the Commission aspires to become the sole European executive, as in a parliamentary system, it is particularly important to stress the importance of separating the regulatory function from general executive power. The notion of a regulatory estate is meant to emphasise this need.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

Lord Cooke of Thorndon (1926–2006): 51 Years in the Law

This article provides an in‐depth analysis of the landmark ‘cash for query’ judgment of the Constitutional Bench of the Supreme Court of India. The scope of parliamentary privileges in India, as well as in England and America, is examined, particularly with respect to the jurisdiction of the courts. The present position in the law of parliamentary privileges in India was laid down in the case of Raja Ram Pal v The Hon’ble Speaker, Lok Sabha, &; Ors. The Supreme Court of India has extensively dwelled on the matter and has delivered a judgment, which is by far the most comprehensive decision in this field of law. The author notes in the analysis that the difference between the English and Indian constitutional systems is of crucial significance. The conflicts between the judiciary and parliament in England arose because of the sovereignty of parliament, and the judiciary had to fight for every inch of its jurisdiction in England. The judiciary had to contend with Parliament not only as a legislative body, but also by virtue of being the ‘High Court of Parliament’, as a superior court. Because of these reasons, the case law from British constitutional history does not have strict applicability in India. The decision of the Supreme Court of India in Raja Ram Pal v The Hon’ble Speaker, Lok Sabha, &; Ors, is a clear expression of a very basic feature of the Indian constitutional mechanism: where the Constitution is the supreme law of the land, and all governmental organs, which owe their origin to the Constitution and derive their powers from its provisions, must function within its framework.     

Human Rights in the Council of Europe and the EU: Towards ‘Individual’, ‘Constitutional’ or ‘Institutional’ Justice?

Abstract: The European Convention on Human Rights, promulgated by the Council of Europe in 1950, is widely regarded as the world's most successful experiment in the trans‐national judicial protection of human rights. The EU's much more recent judicial and political interest in human rights has also been widely welcomed. Yet, while the crisis currently afflicting the Convention system has not gone unnoticed, the same cannot equally be said of the difficulties presented by the increasing interpenetration of the two systems. Amongst the few who have shown some interest in these problems, the dominant view is that good will and common sense will provide adequate solutions. We disagree. Instead, we detect a gathering crisis which, unless properly analysed and effectively tackled, will only deepen as the EU's interest in human rights develops further. In our view, the problem is essentially conceptual and that, ultimately, it boils down to a much‐neglected question, simple to state but not so easy to answer: is the trans‐national protection of human rights in Europe a matter of ‘individual’, ‘constitutional’ or ‘institutional’ justice?     

SUBNATIONAL DETERMINANTS OF KILLING IN RWANDA*

Nearly one million people were killed in the Rwandan genocide in 1994. Although scholars have theorized why this violence occurred, we know comparatively less about how it unfolded. Accordingly, this article assesses the determinants of subnational levels of killing in 142 Rwandan communes by relying on data from the Rwandan Ministry of Local Administration and Community Development, the National University of Rwanda, and the 1991 Rwandan census. Fixed effects analyses reveal that top‐down and bottom‐up factors coalesced to influence violence across Rwanda. The state orchestrated and implemented the violence, and more violence occurred near the extremist center of the country as well as where state actors met strong opposition. Local conditions also shaped the violence, however, and indicators of low community cohesion and social control are associated with comparatively more violence. When put together, a unique model is introduced that integrates state conflict theories and social control theories of crime to explain subnational killing during the genocide in Rwanda.     

The Publius Paradox

At the Philadelphia convention assembled to draft a new Constitution, Alexander Hamilton argued ‘[e]stablish a weak government and you must at times overleap the bounds. Rome was obliged to create dictators’. Publius then expands upon this argument in several ways in the Federalist. I suggest that Publius identifies a dynamic or mechanism, the ‘Publius Paradox’, that warrants great attention: under particular conditions, excessive weakness of government may become excessive strength. If the bonds of constitutionalism are drawn too tightly, they will be thrown off altogether when circumstances warrant. After illustrating and then analysing this ‘Publius Paradox’, I turn briefly to its implications, the main one being that constitutional law should be cast as a loosely‐fitting garment – particularly the executive component of the constitution and the scope of executive powers.     

Eclipse of the Constitution {Europe Nouveau Siècle}

The Court of Justice of the European Union has come to adopt a peculiar mode of balancing, revolving around a set of ‘general principles of law’, which results in key social rights at the core of the postwar constitutional settlement no longer being sheltered from review by reference to supranational economic freedoms. It is submitted that this does not only imply a kind of ideological restyling of European law, as noted in the literature but, more fundamentally, the erosion of Europe's composite constitutional architecture (at once European and national) resulting from playing down social rights qua ‘constitutional essentials’. As the new jurisprudence ‘obscures’ Europe's constitutional constellation, it is submitted that the Court should rule under the constitution and not over it.     

The Lisbon Judgment of the German Constitutional Court,the Primacy of EU Law and the Problem of Kompetenz‐Kompetenz: A Conflict between Right and Right in Which There is No Praetor1

The ECJ has long asserted its Kompetenz‐Kompetenz (the question of who has the authority to decide where the borders of EU authority end) based on the Union treaties which have always defined its role as the final interpreter of EU law. Yet, no national constitutional court has accepted this position, and in its Lisbon Judgment of 2009 the German Constitutional Court (FCC) has asserted its own jurisdiction of the final resort' to review future EU treaty changes and transfers of powers to the EU on two grounds: (i) ultra vires review, and (ii) identity review. The FCC justifies its claim to constitutional review with reference to its role as guardian of the national constitution whose requirements will constrain the integration process as a standing proviso and limitation on all transfers of national power to the EU for as long as the EU has not acquired the indispensable core of sovereignty, i.e. autochthonous law‐making under its own sovereign powers and constitution, and instead continues to derive its own power from the Member States under the principle of conferral. Formally therefore, at least until such time, the problem of Kompetenz‐Kompetenz affords of no solution. It can only be ‘managed’, which requires the mutual forbearance of both the ECJ and FCC which both claim the ultimate jurisdiction to decide the limits of the EU's powers—a prerogative which, if asserted by both parties without political sensitivity, would inevitably result in a constitutional crisis. The fact that no such crisis has occurred, illustrates the astute political acumen of both the FCC and the ECJ.     

The 'Checks and Balances' Doctrine in Member States as a Rule of EC Law: The Cases of France and Germany

Abstract: Though the impact of EC law on the legal status of national powers has been fairly well examined, little attention has been paid to the overall evaluation of the relations developed between national authorities. The paper argues that the mutation of the Judiciary and the Executive role vis‐à‐vis the Legislature appears to be an application of an emerging doctrine in EC public law that conspicuously resembles the ‘Checks and Balances’ theory of American constitutionalism. The action of one public authority is—or must be—countered by the reaction of another for the benefit of EC law. Apart from identifying the features of this ‘principle’ in comparison to its equivalent American doctrine, the paper deals with the question of a possible coexistence of this new model of governance with the traditional one. The comparative perspective is necessary here. Whereas in Germany the constitutional model appears to cope with European demands, in France it seems largely opposed to such a dynamic conception of the separation of powers.     

Casting Aside Clanking Medieval Chains: Prerogative,Statute and Article 50 after the EU Referendum

This article confronts the controversies surrounding Article 50 by analysing the relationship between statute and prerogative in the UK. The piece focuses on domestic constitutional issues and suggests a new way of classifying the relationship between statute and prerogative into two types falling under ‘the abeyance principle’ or ‘the frustration principle’. The abeyance principle means that where statute and prerogative overlap, the prerogative goes into abeyance. The frustration principle means that where statute and prerogative give rise to potential inconsistencies, but do not overlap, the prerogative cannot be used inconsistently with the intention of parliament as expressed in the relevant legislation. It then argues that Article 50 has the status of primary or ‘primary‐equivalent’ legislation which could justify applying the abeyance principle. This would mean that the trigger power would be exercised on statutory authority rather than through prerogative powers. If the courts are unable thus to construe the relevant legislation it argues EU law requires the courts to bridge the gap. Alternatively, if the abeyance principle is not applicable, it argues the frustration principle could apply but the circumstances in this litigation fall outside it. In the further alternative, EU law could require the frustration principle itself to be set aside in this case.     

Civil Society and the Re-imagination of European Constitutionalism

Abstract: The twin concepts of constitutionalism and democracy, which offer a complex template for the structural organisation of a polity, can be understood in terms of a dialectic of complementary but competing values, values represented by responsiveness to an existing order and innovation towards a potentially new order. Recognising this necessarily dynamic relationship, an essentialist reading of a constitutionalisation of the demos is abandoned, and an examination of the extent to which the dialectic can credibly or legitimately be played out in a supranational ‘community’ and in the context of an emerging transnational civil society can be undertaken. Rather than seeking credibility or legitimacy through the rationalisation of a community by an ethical consensus as in some forms of republicanism and communitarianism, the dialectic opens up the norms and boundaries of the polity and leads to an understanding of the ‘community’ in less rigid and more diffuse, even plural, terms. Once understood in this way the possibility emerges for legitimacy to be pursued through a public sphere enlarged by a context‐transcending constitutional discourse mediated by transnational civil society. Alternatively the normative ‘openness’ of the polity might be prioritised and with it the uncertainty/fluidity of the constitutional arrangement itself; in this way the legitimate pursuit of constitutionalism is understood in terms of a never‐ending agonistic struggle or experimental practice.     

‘Citizens’ and ‘Foreigners’ in EU Law. Migration Law and its Cosmopolitan Outlook

Migration has become a controversial subject across Europe and beyond. At the same time, the EU has built up an impressive set of rules for third‐country nationals over the past two decades, which—unlike the mobility of EU citizens—received comparatively little attention apart from immigration and asylum specialists. This contribution presents the constitutional framework for ‘migration law’ towards third‐country nationals and shows in how far they depart from the paradigm of intra‐European mobility. It will be argued that differences can be rationalised by divergent objectives and do, nonetheless, not present a move towards ‘fortress Europe’. EU migration law maintains the distinction between citizens and foreigners at the same time as it protects migrants, including refugees. By accommodating migrants' rights and self‐government, EU migration law can be construed as an endeavour to replace traditional notions of alienage with constitutional rules with a cosmopolitan outlook.