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UK Constitutional Law Association by Constitutional Law Group - 12h ago

This week’s event announcement is below.

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ALBA Summer Conference 2018

Booking is now open for ALBA’s summer conference, which is returning by popular demand to St John’s College Cambridge on Saturday 21 and Sunday 22 July 2018.

Programme

Friday 20 July

  • Accommodation and registration available from 1800
  • Buffet dinner in hall from 1930
  • Drinks in the College bar until 2300

Saturday 21 July

  • 0800-0900: Breakfast
  • 0900-0945: Registration
  • 0940-0950: Welcome and introduction: Martin Chamberlain QC (Vice-Chair of ALBA)
  • 0950-1045: Keynote address by Lord Lloyd Jones (Justice of the UK Supreme Court): “Foreign Affairs and Domestic Courts: A Sea Change”
  • 1045-1110: Morning Coffee
  • 1110-12.30: Immunities and the justiciability of claims affecting the interests of foreign States – Chair: Lord Justice Leggatt; Speakers: Karen Steyn QC and Ben Jaffey QC
  • 1230-1330: Buffet lunch in hall
  • 1330-1445: The relevance of unincorporated international law – Speakers John Larkin QC (Attorney General for Northern Ireland) and Caoilfhionn Gallagher QC
  • 1445-1545: Human trafficking and modern slavery – Chair: Mrs Justice Laing; Speakers: Anne Gallagher and Shu Shin Luh
  • 1545-1830: Free time in Cambridge
  • 1830-1930: Drinks on the College lawn
  • 1930-2200: Dinner in hall, with an after-dinner speech from Karon Monaghan QC

Sunday 22 July

  • 0800-0915: Breakfast
  • 0915-1030: Brexit update – Chair: Mr Justice Lewis; Speakers: Alison Young (Sir David Williams Professor of Public Law, University of Cambridge) and Richard Gordon QC
  • 1030-1055: Morning coffee
  • 1055-1215: Panel discussion: “The future of human rights 20 years on from the Human Rights Act 1998” – Chair: Mr Justice Kerr; Speakers to include Nathalie Lieven QC and Corey Stoughton (Advocacy Director, Liberty)
  • 1215-1225: Closing remarks: Martin Westgate QC (Chair of ALBA)
  • 1230: Buffet lunch in hall

For further information and bookings, click HERE.

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Introductory

Litigation about Brexit continues to throw light on constitutional principles, both new and well-established. In the case of Wightman & others, petitioners [2018] CSOH 61, advised on 8 June 2018, the Court of Session was called upon to consider whether the UK’s Article 50 notification could be unilaterally revoked by the UK in good faith such that the UK could continue to be a member of the European Union after 29 March 2019 on the same terms and conditions as it presently enjoys.

In refusing to make a reference to the Court of Justice of the European Union (“CJEU”) and dismissing the petition for judicial review, Lord Boyd considered the issue was hypothetical because there was in fact no suggestion the notification would be revoked. His Lordship also considered several aspects of Parliamentary privilege, and commented on the proper boundary between the legal and the political parts of constitutional process.

The issues in outline

In this application, all but one of the parties was an elected representative – a mix of members of the Scottish, UK and European Parliaments. The primary order sought was a reference to the CJEU in the following terms:

Does article 50 of the Treaty on European Union allow that the article 50(2) TEU notice which has been sent by the United Kingdom Government on behalf of the United Kingdom notifying the Council of the intention of the United Kingdom to withdraw from the EU can, while the United Kingdom remains a Member State, be revoked  unilaterally by the United Kingdom in good faith and in accordance with its own constitutional requirements, such that the United Kingdom remains a Member State of the European Union on its existing terms of membership? [9]

The applicants contended that having an answer to this question was essential to their task as elected politicians. They wished to see the option of remaining in the EU considered along with the terms of any agreement between the EU and the UK; whereas, the current options were exiting the EU with or without such an agreement [3]. It was argued for the applicants that while the government’s policy was that the Article 50 notice would not be withdrawn, it must be recognised government policy is subordinate to the sovereign Parliament. It followed that government could not restrict the choices which Parliament could make. Because individual Members of Parliament might consider that the better option is to reject the deal on offer and vote instead for the UK to revoke the Art 50 notice, and, it was said, thereby remain a member of the European Union on current terms. But it was a necessary prerequisite that the article 50 notification could be withdrawn, the only court or body that could give a definitive answer to that question was the CJEU [13].

In response, the Secretary of State for Exiting the EU argued that the application was hypothetical and academic. It was the government’s firm policy that the Article 50 notice would not be withdrawn, and, further, it had given a commitment to hold a ‘meaningful’ vote in Parliament on the withdrawal agreement and the terms of the UK’s future relations with the EU [27]. In addition, the Secretary of State argued there was a fundamental issue about the competence of the application because Parliamentary privilege was clearly engaged.

Refusal to refer to CJEU

By the time Lord Boyd came to consider these arguments, the case had already been the subject of an appeal against refusal of permission to proceed, including adverse judicial comment about the formulation of the petitioners’ case. It is fair to say, that it was only the obvious constitutional importance of the issue which persuaded the Inner House of the Court Session to give permission to proceed at all.

In refusing to make a reference to the CJEU, and thereafter dismissing the petition on the basis that the central issue was hypothetical and academic, Lord Boyd noted there was no evidence that there is “a real and substantial prospect” of the UK government revoking the Article 50 notice of the UK’s intention to withdraw from the EU [47]. Nor was there any suggestion that MPs were impeded from advocating remaining in the EU or the objective of securing an opportunity to vote for that option [47].

Revocation of the Article 50 notice was therefore contingent on a number of other factors being engaged for it to be a live possibility, and those could not be said to be realistically present. It followed that the issue raised in the petition was hypothetical [49]. Even on the premise that there was an issue to refer, Lord Boyd was sceptical that the CJEU would accept a reference. The facts were not clearly established, nor would the European Council necessarily have reached a definitive position on revocation. It followed that in essence, the Court of Justice would also be faced with a hypothetical question [70].

Parliamentary privilege

Parliamentary privilege formed a central part of the argument, with the Secretary of State submitting that the question was at its heart about content and direction of Parliamentary proceedings, which are an aspect of Parliamentary privilege, and therefore not justiciable. As it was starkly put in argument, Parliamentary privilege goes to the jurisdiction of the court [31]. This issue arose in part because the subject-matter of the proceedings plainly concerned a question which engaged current and future Parliamentary debate, and in part because the foundations of the petitioners’ case were ministerial statements about revocability of the UK’s Article 50 notice, because, it was said, the government had misdirected itself in law.

Part of the interest of this decision is the explicit engagement with several aspects of Parliamentary privilege – both in the sense of proceedings in one or other House, and at the level of principle in relation to separation of powers.

Of course, the separation of powers point has a long pedigree in this context (see Edinburgh & Dalkeith Railway v Wachaupe (1842) 8 Cl&F 710, Pickin v British Railways Board [1974] AC 765, and Adams v Guardian Newspapers 2003 SC 425, paras 14 & 15). However the court concluded it was not necessary to explore the outer limits of its jurisdiction because the issue did not involve a proposed infringement of fundamental rights or freedoms. Rejecting a submission that referring to Parliamentary material did not impeach what was said or done in Parliament, Lord Boyd observed:

[58] It is of course true that the court is not being asked to rule on the validity of an Act of either the UK Parliament or Scottish Parliament. It is however being asked to settle a legal question raised by a number of MPs in the course of the legislative process. The petitioners seek judicial support for the option of the UK remaining in the European Union to be considered by Parliament. In my opinion that is a clear and dangerous encroachment on the sovereignty of Parliament. It is for Parliament itself to determine what options it considers in the process of withdrawing from the European Union. It is for Parliament to determine what advice, if any, it requires in the course of the legislative process.

Limits of legal intervention

One striking feature of the post-referendum constitutional environment has been the number of actual and projected challenges by means of litigation, sometimes supported by crowdfunding. In that context, the court in Wightman sounded a clear warning about the limits of such litigation, implicitly indicating that there are limits on the use of court process for political purposes – even where matters of constitutional moment are involved.

In the course of submissions for the petitioners, it had been argued that, in EU matters, “law trumped politics”[59]. While that might be apt to convey the centrality to the EU order of the rule of law, the court held that care was necessary to avoid going further with the risk that becoming rule by the courts.

Politics requires space in which to flourish and the courts should only become involved when the elements of constitutional order require it (eg Miller) or to protect and uphold fundamental rights and freedoms. The court is not there to be used by one side or another to advance one side of a political debate. [59]

Conclusions

While the process that is Brexit has raised profound constitutional questions and has generated some innovative use of litigation, Wightman is a reminder of the limits of judicial process as a tool for constitutional action in the UK. As the court observed, the core issue is political, and its resolution is a political question which has ultimately to be debated and decided in Parliament and the country more widely.

Kenneth Campbell QC is an Advocate at Arnot Manderson Advocates, Edinburgh, a Barrister at Lamb Building, London and doctoral researcher at Edinburgh University Law School.

(Suggested citation: K. Campbell, ‘Wightman v Secretary of State: Article 50 and Parliamentary Privilege’, U.K. Const. L. Blog (22nd Jun. 2018) (available at https://ukconstitutionallaw.org/))

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In a previous post, I have argued that the recent decision of the Italian President of the Republic, Pierluigi Mattarella, to refuse to appoint as Finance Minister Paolo Savona, was constitutional. Soon after that initial post, other posts on this and other blogs have argued either in favour or against Mattarella’s decision, either from legal or political perspective, or both. My argument is as follows: (a) the decision to refuse Savona’s appointment is not only legal, but also legitimate, as confirmed by the legal-historical context, in which the Italian form of government has developed; (b) the reasons behind Mattarella’s decision are deeply linked with the “security of the European project”, a rationale which has been a constant feature of European integration. Yet conflicts and contradictions have been concealed for too long and should be addressed more directly.

Pro and contra

Those who tend to be in favour of upholding the President’s discretionary powers – see, for example, this statement published by some important Italian constitutional lawyers, and here, or here – maintain that the role of the President of the Republic cannot be reduced to “rubber-stamping” the initiatives and proposals of the Prime Minister.

Radical opponents of Mattarella’s decision, instead, either contest the legality tout court of his move, by interpreting Article 92 restrictively, or claim that legality in this case does not coincide, or even conflicts with, legitimacy.

The first thesis can be labelled “textualist” or “formalist”. This thesis fails in at least two respects. On the one hand, it speaks to a fictitious idea of “institutional neutrality”, which does not correspond to the political life of institutions. The absolute neutrality of legal arrangements is illusory and never really achievable. On the other hand, it ignores or belittles both the legal-historical context in which the Italian Constitution was written and has evolved. As can be seen in the Preparatory Work of the Italian Constituent Assembly, in particular as regards Articles 87-92 (enlisting some of the powers conferred on the President), “The President of the Republic is the Head of State and represents national unity” (Article 87 (1)). Importantly, he was qualified “Head of State” (despite some opposition in this sense), and, although the expression “guardian of the Constitution” was ultimately rejected, the intention was to reproduce exactly such role. As noted by Meuccio Ruini, Chair of the Committee of 75 experts who drafted the Constitution, the tasks of the President of the Republic were not supposed to be those of a mere “executor”, but rather those of a “moderator” or “coordinator”. His powers would not be easy to define through strict legal criteria, because he would be above transient electoral majorities, to the extent of representing “the unity, national continuity, the permanent force of the State”, a “spiritual, more than a temporal authority”. “No one should be afraid of such powers” – as noted by Ambrosini, another member of the Committee- “because he will not be able to exercise them arbitrarily or on his own (…) and “(…) if the system does not work it explodes…It is necessary to avoid that the position of the Head of State is rendered unstable not only as a matter of law (…), but also as a matter of fact, and this is what we recommend to future Parliaments”. The anomaly and “incorrectness” lies thus not in the President’s decisional power and final say, but, on the contrary, in the winning parties’ attempt to interfere with his/her will and render the system unstable. After all, this is a remnant of the role of the monarch, as elaborated in the previous Constitution (the “Albertine Statute”). Yet, in order to avoid that excessive powers would be conferred on the Head of State with the additional risk of allowing the majority in Parliament to express its own representative, a “third way” was explicitly found. Such solution was to be half-way between US-style Presidentialism and the form of “parlamentarisme absolu” denounced by Carre’ de Malberg as regards the Third Republic in France (which partly inspired the configuration of the Italian President).

Of course, ambiguities inevitably surround the functions and symbolism of the President of the Republic. After all, Article 92 is very concise as regards the power of appointment. In fact, scholars, especially in the years immediately following the entry into force of the Constitution, argued that the President’s role should be passive, detached from political games. This was a rather popular argument in the ‘50s and ‘60s. Yet, things changed. For example, one of the main proponents of this thesis (Galeotti) later changed of mind and conceded that this role could be more active. Over the years Presidents, depending on their personality and the circumstances,  have: exercised moral suasion; interfered with decisions in the field of foreign policy; refused to sign bills they deemed unconstitutional and taken upon themselves the task of influencing the composition of governments, especially during political crises and in light of the long-standing difficulty of the Italian Parliament to express a clear majority. In other words, the weakness of the Parliament has found a counter-balance in the stronger presence of the Head of State.

The second thesis (which can be defined roughly as “majoritarian”) is in some respects akin to political constitutionalism, which tends to view the Constitution as primarily a political process, rather than a norm. From this perspective, the very concept of a “higher law” as a form of pre-commitment of a political community is rejected: instead, political equality, as every citizen’s right to have his/her voice heard and respected (as confirmed, for example, by the right to vote and the principle of majority rule) becomes a condition of legitimacy. One of the outcomes of this is a general mistrust towards decisions by unelected bodies which either constrain or override decisions made by elected representatives (an argument sometimes known as the “counter-majoritarian difficulty”). This thesis fails to embrace fully the concept of “the political”. Exceptional situations in which unelected organs, like the President of the Republic, may adopt decisions which tend to preserve the existing constitutional arrangement or the “interests of the Nation”, are always possible. While this may perhaps sound undemocratic at first sight, it is a feature, which is associated with the self-reinforcing and self-protective nature of constitutional systems.

More nuanced approaches, while recognising both the existence of a certain margin of discretion and the aforementioned need to foster public debate, still point out that this mindframe might either turn into a “straitjacket”, thus resulting into forced membership (the “counter-hegemonic” argument), or facilitate the emergence of a constitutional convention in the sense of an increased role of the President (the “gradualist” argument). Leaving aside the “gradualist” argument (which is connected to what observed above), the following section focuses on the “counter-hegemonic” argument.

The security of the European project

As a matter of fact, it is true that supporters of the European project find it hard to come to terms with (or solve) Rodrik’s paradox: the impossible co-existence of national sovereignty, a functioning EMU, and democratic politics. Yet, the “counter-hegemonic” argument, at least in the version suggested in VerfBlog, does not address this paradox as such. Instead, it focuses on the following question: ‘Can an economist critical of the current governance of the Euro be appointed as Minister of Finance of a Eurozone country?’ and expresses the fear that a constitutional convention, ‘according to which political parties or coalitions that are critical of the existing economic and monetary arrangements within the Eurozone cannot get into government‘, might have emerged. While these are important remarks, this argument tries to prove too much and falls into contradiction. First, as has been noted, this is primarily a matter of domestic, not EU constitutional law. Second, even as a matter of domestic law, arguing that relying on the mere wording of Article 92 would lead to the risk ‘of conflating legality with legitimacy, suggesting the President should do what he is legally empowered to do. But ‘may’ obviously does not imply ‘should’’ misses the point – precisely because the President’s intervention is in line with the constant trend of the material constitution towards an ever-stronger role of the Head of State.

Having said that, the “counter-hegemonic” argument correctly emphasises the worrying tension between freedom and coercion, which can be detected in EU constitutional law. Although the Italian crisis was a matter of domestic constitutional law, it inevitably affects the EU legal and political framework, because of the commitment towards the European project, which is enshrined in the Italian Constitution (Articles 11 and 117). As recently argued by some Italian scholars when commenting on the appointment of the Monti government (above all Antonio Ruggeri), the persistent state of crisis might have modified some of the traditional theoretical categories employed to describe the “constitutional State”, to the extent that governments would now have to seek not only a formal vote of confidence from Parliament, but also an informal vote from the EU and the financial markets. The tension between freedom and coercion is here particularly visible and is expressed by what I call the “security of the European project”, a meta-constitutional rationale which has been historically developing through discursive practices detectable both at the national and the EU level. As EU integration reaches a more advanced stage, its conflictual elements, which have been previously concealed, come to the surface- and, together with them, all the contradictions that affect the EU liberal model. Security is thus both the presupposition of, and a threat to, the project of European integration and such feature can be observed not only as regards the financial and economic crisis, but also in relation to the refugee crisis, the constitutional identity crisis, the rule of law crisis and Brexit. As a result, it is not correct to depict the refugee crisis as a challenge for Northern Europe, and the financial crisis as a challenge for Southern Europe. Both equally affect the political and constitutional framework of the EU polity as a whole and should be addressed by bearing in mind that they touch upon the core of the current transnational integration mind frame. Crisis and security are intertwined and mutually reinforced concepts. However, when crisis turns into a permanent condition and security becomes self-referential, the premises and foundations of a polity are themselves questioned. To be sure, precisely the contradictions and conflicts are an inherent feature of constitutionalism. They have been ignored for too long. It is now time to address them through an open and public debate, keeping in mind the risk of “over-constitutionalisation” both at the EU and at the domestic level.

Massimo Fichera, Adjunct Professor of EU Law and Academy of Finland Research Fellow, Faculty of Law, University of Helsinki

(Suggested citation: M. Fichera, ‘The Italian President and the Security of the European Project’, U.K. Const. L. Blog (21st Jun. 2018) (available at https://ukconstitutionallaw.org/))

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This post will focus on the constitutional issues arising from the debate on the ‘meaningful vote’. There have been various solutions proposed in legislative amendments by the House of Lords, the Government, and by MPs – so much so that it is almost impossible to keep track. The House of Lords originally imposed requirements for a resolution of the House of Commons, coupled with a debate in the House of Lords, to impose binding negotiation instructions on the Government were, inter alia, the Withdrawal Bill to be defeated in a vote in the House of Commons. The Government proposed an alternative solution, merely requiring the Government to set out its response in a written statement. The Right Honourable Dominic Grieve MP’s amendment, (Grieve I) discussed in detail below, and here, appeared to provide for a mid-way solution between the House of Lords and the Government. Following discussions between the Solicitor General and Dominic Grieve, the House of Commons voted in favour of rejecting the proposed amendment of the House of Lords.

On the return of the Bill to the House of Lords yesterday, Lord Callanan tabled a further amendment on behalf of the Government. The new amendment proposed that, if the House of Commons rejects the Withdrawal Agreement, the Government’s statement in response will be followed by a neutral motion in the House of Commons on the Government’s statement, and a motion in the House of Lords to take note of the motion of the House of Commons. It also provides for further similar motions should no agreement be reached on withdrawal or the framework for future relationships by 21 January 2019, or should the Prime Minister announce before 21 January that no deal has been struck. This removes any possibility of the House of Commons issuing binding instructions to the Government as to future negotiations. Also, as a neutral motion, the House of Commons does not vote on whether to accept or to reject the Government’s statement and cannot propose amendments to the Government’s statement. Nor would there be the same political consequences following the loss of a neutral motion as there would be following a defeat of a motion to agree with the Government’s statement.

In response, Viscount Hailsham first proposed an amendment to restore the ability to issue binding negotiating instructions, also occurring should the Withdrawal Agreement be rejected, the Prime Minister announce that no Withdrawal Agreement has been reached before 21 January, or if no Withdrawal Agreement is reached by 21 January. Viscount Hailsham later tabled a second amendment, no longer requiring negotiation instructions. Instead, it replaced the Government’s proposed neutral motion with a motion to approve the Government’s statement. This amendment was referred to as ‘Grieve II’ by Viscount Hailsham. In tabling the amendment, Viscount Hailsham was motivated to uphold the agreement between Dominic Grieve and the Solicitor General to negotiate a solution to what may otherwise have been a defeat for the Government in the House of Commons should Grieve I have been voted on in that House. Grieve II was ultimately approved by the House of Lords.

The main difference turns on the removal of binding instructions on negotiation. The House of Commons explained that such a mandate ‘is not consistent with the constitutional roles of Her Majesty’s Government and Parliament in relation to the conduct of international relations’. Indeed, Vernon Bogdanor went one step further, describing this as a ‘constitutional absurdity’. This was repeated by Baroness Evans of Bowes Park when introducing the Government-backed amendment in the House of Lords. This blog post argues that both of these conclusions are questionable. They rely on an assessment of the normal rules of the constitution. However, we are facing a novel situation. As such, proposals which seem absurd at first glance may transpire to be desirable once these new constitutional circumstances are more clearly understood. As such, we should recognise that the new amendment on the meaningful vote – Grieve II – approved by the House of Lords provides a sensible compromise, in a situation where the House of Lords, should it have so wished, could have pushed further to protect the role of Parliament in resolving a problem with fundamental constitutional repercussions.

Constitutional Inconsistency?

The nature of the ‘constitutional inconsistency’ highlighted by the House of Commons can be explained as follows. The Crown enjoys a prerogative power to enter into and negotiate Treaties. Prerogative powers belong to and are exercised by Her Majesty’s Government, not by Parliament. Although prerogative powers are generally exercised by the Government, their exercise can be subject to control or restriction by either the development of constitutional conventions or by legislation. For example, conventions may arise surrounding the exercise of prerogative powers, giving Parliament a role in how prerogative powers are used. But, as the recent exercise of the prerogative to carry out air strikes on Syria demonstrated, conventions, even those written down in the Cabinet Manual, can change in scope as exceptions are carved out. Prerogative powers can also be abrogated, where legislation regulates the same subject matter as a prerogative power. Legislation may also restrict the scope of prerogative powers. Prerogative powers cannot change UK law or remove rights enjoyed in UK law, nor can prerogatives frustrate legislation.

This brief description explains how a provision empowering the House of Commons to provide mandatory negotiating instructions to the Government appears to contradict the separation of powers. However, it also demonstrates that it is constitutional for legislation to be enacted which modifies or limits prerogative powers. Legislation is capable of changing current constitutional arrangements. If the House of Lords original amendment had been accepted, it would have modified the way in which a particular instance of a prerogative power could have been exercised. To merely state that this modification is inconsistent with the current constitutional roles of the Government and Parliament is insufficient precisely because legislation can modify these roles when required.

Constitutional Absurdity?

The deeper issue is whether, were the legislature to place binding instructions on Parliament as to how to negotiate Treaty requirements, it would be breaching the separation of powers. Why is it the role of the executive to negotiate Treaties? We could point to the historical development of this power, originally in the hands of the Crown and now exercised by the Government on behalf of the Crown. But this merely leads to the conclusion of the previous section – negotiating Treaties may be part of the prerogative powers of the Government, but this can be restricted and modified by legislation.

A further, more sound, justification for ensuring that it is the Government acting alone when negotiating Treaties stems from the role of States in international law. It is important that States talk with one voice on the international stage. Any Government entering into negotiations on behalf of their particular State can do so more effectively when they express one clear intention, unencumbered by the nuances of multiple voices. Moreover, negotiations take place face to face in one location. The Government’s representative in the negotiation room needs to be able to respond to these negotiations as they take place. It may be impossible for any one Government official to be instructed clearly by the legislation on the response to every possible direction in which negotiations may turn. One official can respond on the spot, without having to wait further instructions and thereby potentially losing an advantage in the negotiation room.

Additionally, even if the Government were to return with a Treaty with which Parliament disagreed, there would be opportunities for Parliament to prevent the ratification of this Treaty when the Treaty is laid before Parliament and, normally, subject to the negative resolution procedure prior to its ratification under the Constitutional Reform and Governance Act 2010. Any Treaty obligations entered into by the Government would, for the most part, not have effect in UK law until legislation were enacted to incorporate these obligations into domestic law. This gives Parliament a role in determining how to incorporate Treaty obligations into domestic law.

The above describes the status quo. However, before endorsing the status quo for the process of negotiating our withdrawal from the EU, we have to ask ourselves whether we are dealing with the status quo or with novel constitutional territory. Only then can we determine whether the amendments on the meaningful vote are a constitutional absurdity when applied to the ratification of the Withdrawal Agreement (and the Framework for the Future Relationship), or to determine the response should no agreement be reached.

The UK is not currently negotiating a new Treaty in a vacuum. It is negotiating its withdrawal from one Treaty and its replacement with a new Treaty setting out a new set of arrangements between the UK and the European Union, both for the long-term future and as regards the transition from our current membership of the EU to this long-term future. Until the vote on the Withdrawal Agreement is put before Parliament, the UK Government will have been speaking with one voice on the international stage. Whether we agree with the direction of change or not, the Withdrawal Agreement will make fundamental changes to the UK’s constitution. Article 50 TEU places a strict timetable on negotiations to leave the EU, If this timetable is not met, then Article 50 makes clear that the UK leaves the EU with no Withdrawal Agreement and no Framework for a Future Relationship, unless the parties can agree an extension to the time limit. Whilst the European Union (Withdrawal) Bill, once enacted, will ensure continuity of EU-derived law in the UK, it cannot preserve continuity of those EU-derived laws which rely on reciprocal arrangements with the EU. This can only be done through Agreements between the UK and the EU which are then implemented in the UK.

The rejection of the Withdrawal Agreement so close to the end of the two-year time limit will create a constitutional crisis. The question is how best to steer the UK through such a crisis. If the Withdrawal Agreement and the Framework for the Future Relationship is not approved by a motion of the House of Commons and a motion of the House of Lords to take note of these Agreements, the Government proposes a series of written statements and neutral motions in the House of Commons. These will occur if the Withdrawal Agreement is rejected, or if no Agreement is reached by 21 January 2019. Whilst timetabled debates are an improvement on a mere written statement, the motions will provide little opportunity for the House of Commons to guide the Government. Nor will the House of Commons have any role to propose amendments to the Withdrawal Agreement under the provisions of the Constitutional Reform and Governance Act 2010, should any future agreement be reached. Moreover, section 22(1) of this Act states that the negative resolution procedure does not apply ‘ if a Minister of the Crown is of the opinion that, exceptionally, the treaty should be ratified without the requirements of that section having been met’. In this situation, the only constraint on the Minister is that he or she issue a statement explaining why a Treaty was not laid before Parliament.

When examined against this backdrop, we can see that the proposed amendments to the meaningful vote by both Viscount Hailsham and Dominic Grieve are not designed to undermine the separation of powers, but to find a means of resolving a potential constitutional crisis. The original House of Lords amendment did not transfer a blanket power to issue negotiating instructions to the Government. The ability of a resolution of the House of Commons, combined with a motion of the House of Lords, to impose negotiation instructions on the Government only arose if certain conditions were met. First, if the Withdrawal Agreement was not approved by a resolution of the House of Commons, and a motion in the House of Lords, by 30 November 2018. Second, if the Act of Parliament to implement the Withdrawal Agreement and any transitional measures did not receive royal assent by 31 January 2019, and third if no Withdrawal Agreement was reached by 28 February 2019. Viscount Hailsham’s original amendment in response to the House of Commons would have applied if no political agreement had been reached on the Withdrawal Agreement by 30 November 2018, or if no political agreement on the Withdrawal Agreement had been reached by 15 February 2019.

Grieve I would also only have arisen where certain conditions are met. Moreover, Grieve I would not have required instructions as to future negotiations as the first response. If there were no agreement to the Withdrawal Agreement, Grieve I would have required the Government to table a motion in the House of Commons seeking approval of the Government’s response. In a similar manner, Grieve I would have required approval of the House of Commons of the Government’s position in response to the failure to reach agreement on the Withdrawal Agreement by 30 November 2018. The requirement to follow directions from a resolution of the House of Commons, and a motion in the House of Lords, would have only occurred if no political agreement had been reached on the Withdrawal Agreement by 15 February 2019. Viscount Hailsham’s second amendment, Grieve II, which was supported by the House of Lords, requires a motion in the House of Commons to agree to the Government’s statement, and a motion in the House of Lords to take note of the motion of the House of Commons, in response to the failure of the House of Commons to vote in favour of the Withdrawal Agreement, or an annoucement by the Prime Minister prior to 21 January 2019 that no political agreement had been reached, or no political agreement having been reached by 21 January.

None of these amendments, therefore, impose a general requirement that the Government be instructed by the legislature on how to conduct international relations. They are a specific exception to current constitutional arrangements. Nor are they designed to usurp the separation of powers. They aim to ensure a constitutional backstop, providing for Parliamentary involvement in the resolution of the rejection of the Withdrawal Agreement, or the failure to reach an agreement, against a tight timetable, where the consequences of failing to reach an agreement are wide-ranging and give rise to considerable constitutional repercussions.

Constitutional Inconvenience?

The Government’s solution is to steer the country through any emerging constitutional crisis by force. It can push its own resolution to the crisis through Parliament, merely relying on neutral motions as a means of enforcing Governmental accountability. All whilst ensuring the Sword of Damocles that is exiting the EU with no Withdrawal Agreement hangs over the head of Parliament. The House of Lords and Dominic Grieve want Parliament to have a greater role in the resolution of this crisis, looking at other solutions that may reach an agreement, or even whether it would be wise to seek an agreement to extend the deadline for negotiations, giving the UK time to reach a better deal rather than leaving with no deal. The final version of the meaningful vote approved in the House of Lords yesterday reaches a compromise, removing what may well have been a constitutionally valid requirement of a motion including negotiation instructions and replacing it with a motion to approve the Government’s statement. Whilst this may seem inconvenient in terms of maintaining Governmental power, it may be a better means of resolving a unique constitutional conundrum and preserving the sovereignty of Parliament.

In all of these debates, a further point needs to be made. Viscount Hailsham, the Government and Dominic Grieve were not alone in proposing amendments to the meaningful vote. The Right Honourable Tom Brake MP, and others, proposed a further amendment. In particular, it included the possibility that, if the Withdrawal Agreement were rejected, a House of Commons motion could instruct the Government to hold a referendum on whether to accept the Withdrawal Agreement or to seek to revoke the Article 50 notification. In the current climate, any such resolution is automatically dismissed as an attempt to prevent Brexit. However, divorced from this context, it provides a more constitutionally sound resolution to the constitutional crisis that could arise were the Withdrawal Agreement to be rejected or no agreement reached. The people decided to seek to leave the European Union in a referendum. As such, should it not be the people who decide whether the Withdrawal Agreement, rejected by Parliament, or leaving with no deal at all, leads to the future relationship with the EU they wanted?

Maybe it is time to stop thinking about power and political deals, and to start thinking about constitutional legitimacy. Negotiating these deep constitutional waters can only be achieved effectively if we look to constitutional principles as applied to specific potential problems, divorced from historical arguments and polemical debates about the pros and cons of Brexit.

With thanks to Hayley J. Hooper for comments on an earlier draft.

Alison L. Young, Sir David Williams Chair of Public Law, University of Cambridge

(Suggested citation: A. Young, ‘European Union (Withdrawal) Bill and the Meaningful Vote: Constititutional Inconsistency or Constitutional Inconvenience?’, U.K. Const. L. Blog (20th Jun. 2018) (available at https://ukconstitutionallaw.org/))

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This post considers whether it is a convention of the British constitution that Parliament cannot direct the executive in the making of treaties. The context, of course, is the current tussle over whether the European Union (Withdrawal) Bill should be amended to allow the House of Commons a “meaningful vote” on the outcome of the current negotiations with the EU.

Amendments to this effect have been tabled by Viscount Hailsham and Dominic Grieve. These amendments stand out among the many, many amendments that have been debated in connection with the Withdrawal Bill. Government resistance to most amendments proposed by pro-European parliamentarians has been based on the proposition that Parliament cannot act against the “will of the people”, as (putatively) expressed in the June 2016 referendum. But in the case of the “meaningful vote” amendments, the Government is taking a different line. These amendments cannot be accepted (we are told) because they infringe the Crown’s historic prerogative of negotiating and concluding treaties. They must be defeated not (or not only) because they violate the “will of the people”, but because they violate monarchical authority.

Mr Jacob Rees-Mogg MP has based his opposition to a “meaningful vote” amendment on the principle of the separation of powers; he stated in this morning’s Times that the House of Commons “is not and cannot be an executive body”. Likewise, Mr David Davis stated in the debate on Tuesday, in relation to Dominic Grieve’s amendment:

What it amounts to is an unconstitutional shift that risks undermining our negotiations with the European Union. It enables Parliament to dictate to the Government their course of action in international negotiations.

Of course, as we know, the concept of unconstitutionality is a slippery one in this jurisdiction. In Madzimbamuto v Lardner-Burke and George [1969] 1 AC 645, a case which involved far-right nationalist politicians, the Privy Council famously stated:

It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid.

We must therefore interpret the position of Mr Davis, Mr Rees-Mogg and their supporters as being that a “meaningful vote” amendment would be unconstitutional not in the sense of being beyond the legal powers of Parliament to enact, but rather unconstitutional in the sense of being contrary to established understandings of the British constitution – contrary to convention, in other words.

It is trite law that the royal prerogative, as exercised in modern times by ministers, does indeed extend to negotiations such as those in which the Government is currently engaged with the European Union: “The conduct of foreign affairs, making treaties, making peace and war, conquering or annexing territories, are all aspects of the Royal prerogative” (Rahmatullah (No 2) v Ministry of Defence [2017] UKSC 1, per Lady Hale). Presumably even members of the ERG would agree that only the first two of these things is relevant here. Yet I wish to suggest that one relatively recent precedent makes it clear that it is not contrary to British constitutional convention for the Commons to seek to direct the actions of the executive in the making of treaties.

The precedent comes from the time of the Treaty on European Union, better known as the Maastricht Treaty. After being negotiated by the Major Government, this treaty was implemented in UK law by means of the European Communities (Amendment) Act 1993. During the epic parliamentary battle over the legislation, the Government accepted a Labour amendment which in due course became Section 7 of the Act:

This Act shall come into force only when each House of Parliament has come to a Resolution on a motion tabled by a Minister of the Crown considering the question of adopting the Protocol on Social Policy.

While the wording of this section referred to a Government motion (“tabled by a Minister”), the intention was always that the Labour Opposition would table an amendment to the Government motion, and that that amendment would call upon the Government to adopt the Protocol on Social Policy. This was a part of the treaty – otherwise known as the Social Chapter – from which John Major had secured an opt-out for the UK on the grounds of economic policy.

The crucial votes were taken in the Commons on 22-23 July 1993. On 22 July, the Opposition narrowly failed to amend the Government’s motion, but it succeeded in voting down the motion itself. It will come as a surprise to no-one that the rebel Conservative MPs who voted with Labour on that occasion included certain current MPs who are opposed to a “meaningful vote” amendment (it would be invidious to mention the individuals concerned). Major responded by re-tabling the Government motion as a matter of confidence the following day. He won the resulting vote comfortably.

The key point is that Section 7 amounted to a deliberate and conscious attempt to empower Parliament to force the Government not to ratify an international treaty that it had negotiated unless it reconsidered its decision to reject certain terms of the treaty. It did not de jure allow the Commons to issue a legally binding direction to the Government as to what it ought to sign up to (and there was some suggestion at the time that the Government could ignore a Commons vote in favour of the Social Chapter – in Prime Minister’s questions on 20 July 1993, Major refused to be drawn on this point). But that is not the issue. The objections of Messrs Davis, Rees-Mogg et al. are based on broad constitutional principle – concern for the separation of powers – rather than on any narrow de jure point about the enforceability of a Commons resolution.

In conclusion, whatever the merits or otherwise of a “meaningful vote” amendment, such an amendment cannot be said to amount to an unprecedented departure from the conventional distribution of powers under the British constitution.

Francis Young is a Fellow of the Royal Historical Society, the author of 12 books, and holds a PhD from the University of Cambridge.

(Suggested citation: F. Young, ‘Parliament and Taking Back Control: A Precedent from the Maastricht Debates’, U.K. Const. L. Blog (15th Jun. 2018) (available at https://ukconstitutionallaw.org/)

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On Tuesday 12 June 2018, the Government will ask the House of Commons to reject the Lords’ meaningful vote amendment to the EU (Withdrawal) Bill (Lords Amendment 19). If the amendment is rejected, the Government will ask the Commons to accept its own alternative version, known as an ‘amendment in lieu’. If either amendment is enacted, and the Commons uses its veto to reject the Withdrawal Agreement, this would be a constitutionally unprecedented situation. This post looks at the Government’s ‘amendment in lieu’, and the features that distinguish it from the Lords’ amendment.

A new constitutional role?

The Commons faces a choice between two alternative legal frameworks for regulating the role that Parliament will play in the process of approving (or not approving) the agreements negotiated by the Government under Article 50. Both amendments grant Parliament a legally guaranteed veto over the Withdrawal Agreement. However, if the Withdrawal Agreement is rejected by the Commons, or the Government fails to put it before the House, then only the Lords’ amendment offers Parliament a right to issue binding directions on the negotiations upon the Government.

The proposal to grant Parliament a power to give negotiation directions would be constitutionally unprecedented. If either amendment is enacted, and the Commons uses its veto to reject the deal, this would be a constitutionally unprecedented situation, regardless of whether Parliament were then empowered to issue directions. The choice between these amendments boils down to whether the Commons wants to grant itself legal powers to issue directions to the Government in that situation.

Conditions for ratification and approval

The Government’s proposed amendment would create a binding legal obligation for the Commons to approve the Withdrawal Agreement and the Framework for the Future Relationship, by a resolution, before it can be ratified (subsection (1)(b)). The Lords must also ‘take note’ and ‘debate’ the agreements (subsection (1)(c)). These provisions would (if enacted) turn a political commitment made by David Davis MP (in a Written Statement on 13 December 2017) into a legally binding statutory provision. The Government’s amendment goes beyond that statement by also codifying the commitment to hold the vote before the European Parliament provides its verdict under Article 50 (subsection (2)). Taken together, these provisions effectively provide the Commons with a legally binding veto over the Withdrawal Agreement, equivalent to that granted to the European Parliament by Article 50 TEU.

The role of the resolution

As regards the resolution in the Commons, there are two differences between the Government’s amendment, and the Lords’ equivalent that are worth noting. The Government’s states that the Agreement cannot be ratified until the resolution is passed in both Houses, whereas the Lords’ states that the agreement cannot be concluded. While it is clear what ‘ratification’ means, ‘conclusion’ is an EU term for ratification of a treaty. Article 50(2) states ‘the Union shall negotiate and conclude an agreement with’ a withdrawing State and that it will be ‘concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament’.

The Government’s amendment says that the motion must approve the Framework for the Future Relationship as well as the Withdrawal Agreement. The Lords’ amendment does not make any direct reference to the Framework for the Future Relationship. This could be legally significant, as the Government’s requirement that the motion approves both could have implications for what happens if the Commons rejects the motion.

The Government’s amendment contains two further conditions for ratification which are not required by the Lords’ equivalent. The Government’s requires three documents to be laid before each House:

  • A statement that political agreement has been reached,
  • A copy of the negotiated Withdrawal Agreement, and
  • A copy of the Framework for the Future Relationship.

The requirement to lay both the Withdrawal Agreement and the Framework for the Future Relationship emphasises that Parliament is asked to approve both agreements (paragraph 1(a)).

Primary legislation to implement the Withdrawal Agreement

The Government’s amendment also requires ‘an Act of Parliament has been passed which contains provision for the implementation of the withdrawal agreement’ (subsection (1)(d)). This requirement to pass an Act before the Withdrawal Agreement can be ratified reflects the UK’s existing constitutional requirements. Subsection (1)(d) confirms the fact that this constitutional requirement effectively grants Parliament an additional veto over the Withdrawal Agreement. This provision notably distinguishes between the Withdrawal Agreement and the Framework for the Future Relationship as regards to this approval process. Whereas both must be laid before both Houses and approved and considered by the Commons and the Lords respectively, under this amendment only the Withdrawal Agreement must be subject to implementing provisions enacted by Parliament before it can be ratified. This reflects the fact the Withdrawal Agreement is a treaty, whereas the Political Declaration will only be implemented into domestic law after the UK has left the EU.

The requirement in subsection (1)(d) also serves as a reminder of the likely pressure on the parliamentary timetable if the resolution to approve is passed. The bill to implement the Withdrawal Agreement would need to cover several difficult constitutional issues, including transition. It will also need to receive Royal Assent before exit day, expected to be on 29 March 2019. The EU (Withdrawal) Bill will have taken at least 11 months to complete its parliamentary journey; the Withdrawal Agreement and Implementation Bill will likely need to be passed in under 6 months.

Post-rejection regulation

Both amendments seek to legislate for what would happen if the Commons does not approve the Agreements negotiated by the UK Government under Article 50. However, each defines differently when an Agreement is ‘not approved’ and most significantly what happens in a ‘non-approval’ scenario.

The Government’s amendment states that if the ‘Commons decides not to pass the resolution mentioned in subsection (1)(b)’ a Minister is legally obliged to ‘make a statement’ setting out how the Government intends to proceed in the negotiations with the EU (subsections (3) and (4)).

What counts as the Commons not passing the resolution in question?

Subsection (1)(b) refers to the resolution approving both the Withdrawal Agreement and the Framework for the Future Relationship. If this resolution were moved and defeated, this would clearly trigger subsection 4. However, if the resolution was amended – to either object to an element of the substance of either of the Agreements, or to insert further procedural hurdles into the process, would that count as a decision ‘not to pass’? Hogarth and White, from the Institute for Government, have argued the Government is wrong to present the vote as a binary choice. They argue the Commons would be able to ‘amend the motion so as to put conditions on approval’. Whether such conditions amounted to a non-approval decision would depend on the precise form of words passed, and how the Government interpreted them.

‘A no-Brexit amendment?’

The Lords’ amendment takes a different approach to regulating what would happen if the Commons did not pass or amended the resolution. Firstly, the Lords’ amendment defines the resolution that must be passed as one that approves the Withdrawal Agreement. It does not reference the Framework for the Future Relationship.

Secondly, the non-approval provisions in the Lords’ amendment can be triggered in three different ways:

  • if Parliament has failed to approve the Withdrawal Agreement before 30 November 2018 (subsection (6)), or
  • if Parliament has not passed the Bill needed to implement the Withdrawal Agreement by 31 January 2019 (subsection (7)), or
  • if no agreement has been reached between the UK and the EU by 28 February 2019 (subsection (8)).

As with the Government’s amendment, it does not address whether an amendment to the resolution would constitute a ‘failure to approve’.

Subsection 5 of the Lords’ amendment would enable Parliament to issue a legally binding direction ‘in relation to the negotiations’ under Article 50, provided the direction is approved by a ‘resolution of the House of Commons’ and ‘subject to a consideration of a motion in the House of Lords’. Such a direction would not have any legal effect upon the EU’s negotiation position or the Article 50 process. This proposed power has nevertheless proved controversial. Some, including members of the Government, have called this a “no-Brexit amendment”.

Conclusion

If either of these amendments are included in the EUW Bill as enacted, the provision will represent a significant constitutional innovation. For the first time, Parliament would gain a legal right to veto an international agreement.

However, even if neither of these amendments are enacted, the Commons has been promised a vote to approve the agreement. If this resolution could not then be passed, the UK constitution provides no clear guidance as to what should happen next.

Prior to the publication of this amendment, David Davis MP had said that, if the Commons did not pass the motion, then the “negotiations will fall”. Davis also said that in a ‘no deal’ scenario there might end up being a “bare-bones deal”. Such a deal would need domestic legislative changes to give effect to it.

If the Commons refused to approve the Agreements, Parliament would play a role, even if the Lords amendment was not passed. However, of the two amendments, only the Lords’ would grant Parliament a power to issue negotiating directions. If the Lords’ amendment is not passed, and the Commons subsequently rejected the Agreements put before it, the UK’s existing constitutional framework provides that the Government of the day is responsible for deciding how to respond.

This post has also appeared on the House of Commons Library page here.

Jack Simson Caird is a constitutional law specialist in the House of Commons Library.

(Suggested citation: J. Simson Caird, ‘Parliament’s Right to a “Meaningful Vote”: Amendments to the EU (Withdrawal) Bill’, U.K. Const. L. Blog (11th Jun. 2018) (available at https://ukconstitutionallaw.org/))

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UK Constitutional Law Association by Constitutional Law Group - 2w ago

This week’s announcements are below.

~~~

WG Hart Workshop 2018: Building a 21st Century Bill of Rights

Date: Monday 11 June – Tuesday 12 June 2018

Venue: Institute of Advanced Legal Studies, Russell Square, London

Academic Directors Professor Merris Amos, Professor Roger Masterman and Dr Helene Tyrrell are pleased to announce that registration for the WG Hart Workshop 2018 is open and a few places remain if you are interested in attending. The Workshop will include keynote addresses from Judge Tim Eicke, European Court of Human Rights, and Professor Conor Gearty, LSE. A variety of issues concerning the design and implementation of bills of rights will be considered in 11 specialist panels over the two days of the Workshop. For full details of the Workshop, and registration, please visit: www.hartworkshop2018.com

~~~

Call for papers
EuConst Colloquium
5 October 2018
University of Amsterdam

The board of editors of the European Constitutional Law Review invites submissions for its 2018 EuConst Colloquium, which will be held in Amsterdam on 5 October 2018. The meeting is organized in cooperation with the University of Amsterdam and Maastricht University.

In line with the objectives of EuConst, the Colloquium will reflect on themes of European constitutional law, its history and its evolution. The board of editors welcomes submissions on
topical European constitutional issues, including:
– topical aspects of EU law doctrine, as e.g. mutual trust and its limits
– broader issues of constitutional relevance, such as social justice in Europe
– current problems from national law in broader European context, as e.g. the constitutional mandate of the Italian President in comparative perspective
– recent constitutional developments, as e.g. the rule of law crisis in Hungary and Poland
– European constitutionalism between differentiation and disintegration
– topics on fundamental rights, the Charter of Fundamental Rights and the ECJ

Authors should not feel constricted by these suggestions but should ensure their contribution has a distinctly European relevance going beyond the confines of a single national legal order.

Draft papers or abstracts should be submitted for review by 1 July 2018 to euconst@uva.nl with ‘EuConst Colloquium’ in the subject line. Decisions on accepted papers will be made by 15 July 2018. Authors whose contributions are accepted will be expected to submit their paper by 15 September 2018. The board of editors will be happy to consider accepted papers for publication in EuConst, subject to the usual double-blind peer review process. Young scholars preparing for their PhD or within five years of its completion are especially encouraged to submit.

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Ireland Post Brexit:

Constitutional and Legal Consequences, North and South

13th Italian-British Constitutional Conversation
Monday, 11th June 2018, 4:30pm
Italian Cultural Institute
39 Belgrave Square, London SW1X 8NX

Foreword:

Sebastian Payne (Kent, UKCLA)

Alessandro Torre (Bari Aldo Moro, Devolution Club)

Chair:

Giuseppe Franco Ferrari (Bocconi, Diritto Pubblico Comparato ed Europeo)

Speakers:

Gordon Anthony (QUB)

Oran Doyle (Trinity)

Discussant:

Peter Leyland (SOAS)

All UKCLA members are welcome.

More information can be found in the flyer below.

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There is no shortage of stories on Italian institutional crises originated in the context of a parliamentary system with multi-party inclinations and a misfit electoral law. And Italy is not even an isolated case of hard processes of formation of government after troubled elections: the cases of the Netherlands and Belgium may be easily recalled. But this crisis was a particularly dark and stormy night. The role played by President Sergio Mattarella in vetoing the appointment of an Eurosceptic finance minister has left many commentators bewildered, including both those more inclined to recognise the presidential power to influence political decisions and those less willing to support a government of parties with a clear populist rhetoric.

The bewilderment is justified by the absence of precedents, but the President’s conduct corresponds to his constitutional powers. In terms of political convenience and in light of recent developments, Mr. Mattarella’s choice was wise, even if it boosted populist rhetoric for almost five uninterrupted days. In terms of legal argument, the same choice is a sound interpretation of his role as pictured in the Constitution.

There is a second reading level of the Italian stormy night: the President’s conduct signals that there is a kind of pro-Europe militant attitude. The question is if this attitude is a constitutionally tenable argument when the ‘will of the people’ seems to point in another direction. The Italian institutional crisis then is a mirror of a more general constitutional issue in times of European turmoil: how true is it that sovereignty lies entirely in the people?

To proceed with the arguments, a few lines on the complicated plot are needed. The President’s first decision not to appoint Giuseppe Conte as Prime Minister was explained in a public statement in the evening of Sunday May 27th: the majority parties’ unwillingness to offer an alternative name to retired economics professor Paolo Savona as finance minister represented an unacceptable imposition. The two majority parties were essentially pushing the President to appoint a minister who, he believed, could convey a wrong message regarding Italy’s commitments towards the international arena, i.e. partners, investors, EU institutions and Member States.

Two days of institutional turmoil followed: Carlo Cottarelli, the former commissioner for the spending review, was designated as Prime Minister, charged with the task of finding support for a technocratic ‘President’s Government’ (Governo del Presidente), while the Movimento 5 Stelle invoked the impeachment (messa in stato di accusa) for the Head of State. On Thursday, the Movimento 5 Stelle and Lega agreed on suggesting Giuseppe Conte again. Most importantly, the two parties decided to “move” Paolo Savona from the Ministry of Finance to the Ministry of European Affairs. On Friday, the Head of the State finally appointed a Movimento 5 Stelle-Lega government, led by Professor Conte.

The storm is over, the government in charge. What is left is the precedent of the Head of State’s refusal to appoint a minister on the basis of his political views. There are two ways to look into this institutional crisis. One entails a straightforward question: “Can the President veto an appointment on such a ground?” The answer to this question is straightforward. The Constitution and constitutional practice both make it clear that the President has no such power. This question, though, does not mirror what happened in the Italian stormy night. It should rather be rephrased as follows: “Can the President veto an appointment on the grounds of the consequences the appointment may determine in terms of constitutional interests?”

To answer the question from this second perspective, we should start from the Constitution. Article 92, cl. 2 of the Italian Constitution states that: “The President of the Republic appoints the President of the Council of Ministers and, on his proposal, the Ministers.” The clause may be interpreted as to leave the President a minimum margin of choice. Italian constitutional scholarship is nearly unanimous in restricting presidential maneuvering to legal and formal considerations as to the propriety of certain designations (i.e. cases of open conflicts of interests). Constitutional practice points in the same directions. The decision not to appoint a minister then has nothing to do, in principle, with determining or influencing political choices pertaining to the Government or, more precisely, to the Parliament-Government circuit.

The constitutional design of the Presidency supports such a reading. The President is the guarantor of the Constitution, the transmission belt in times of constitutional crisis, and a role player in many executive decisions (including the enactment of normative acts), but nothing in the Constitution authorises the President to exercise powers that express personal political preferences.

But President Mattarella’s choice can hardly be presented as a personal political preference. He used the power conferred upon him by Article 92, without bringing his role as the ultimate keeper of the Constitution into the debate. The Head of State resorted to a quite different substantive argument. He explained that the designation of the finance minister is an ‘instant message’ to international partners and investors. The possible appointment of a finance minister who would actively question European commitments or even work towards exiting the Eurozone had already determined factual consequences in terms of distrust in the stability of the Italian economic system. Such financial consequences would impact both Italian small savers and foreigner investors and ultimately the State’s ability to support social welfare. What should be recalled is that both the safeguard of savings (Article 47) and social welfare are constitutional imperatives (Articles 29-34). Hence, factual consequences impacting on constitutionally protected interests and rights are the reasons for pushing parties to find an alternative name for the Ministry of Finance.

So if we circle back to the nature of the refusal to appoint the finance minister, it does not amount to an attempt to influence the economic policy of the government (in the end even the newly-appointed minister of finance, Giovanni Tria, has expressed harsh criticism towards the EU economic governance). The refusal is rather the exercise of a constitutionally mandated power, aimed at pushing parties to confront the factual consequences of their choices. The fact that those parties have populist inclinations makes it even more important to have them facing the already visible implications of a controversial aspect of their agenda.

There is a further reading of the Italian stormy night. The President did not conceal that the Italian membership to the EU is hardly a negotiable commitment. He mentioned the lack of an open public debate, during the electoral campaign, on the possibility to exit the EU as a reason to veto the appointment of a finance minister who may be driven by Euroscepticism. He then clarified that Italy is a founding member of the EU and one of the leaders of EU developments. The Movimento 5 Stelle reacted by stating that the Head of State was implying that EU membership is an undisputable matter.

From a legal standpoint, the President’s clear preference for European membership is grounded on constitutional provisions such as Article 11 (listed among fundamental principles) and Article 117. The former authorises transfer of sovereignty to international institutions for the promotion of peace and international cooperation. The latter prescribes that the exercise of legislative power shall conform to the Constitution and to international and European obligations. Of course international commitments can be withdrawn, but the nature of the European membership as well as the level of political and economic integration that EU has reached require an open and deep debate to discuss the consequences any choice may determine.

Against this backdrop, the Italian Constitution is not perfectly neutral on international commitments. The Constitution expresses a kind of constitutionalism which does not fit the sovereignty-based arguments of the two parties that form the current government. In the Italian constitutional frame, popular sovereignty is coupled with the openness towards the international community. Openness means renouncing exercising spheres of sovereignty under some circumstances (reciprocity) and in light of specific purposes (namely peace and cooperation). This is another way to say that the Constitution looks at the real circumstances of social and political life, by acknowledging that States need forms of cooperation which may be required by historical contingencies as well as by economic, social and political changes. The Constitution does not require Italy to be a member of the EU forever. It does require sovereignty to be exercised not in isolation, but in a constant dialogue with international partners. The reason for the dialogue is the building of a ‘world order ensuring peace and justice’ (again, Article 11). So there is a constitutional preference to build the EU in light of such purposes, rather than to leave the European project. This does not amount to a constitutional mandate. The ‘will of the people’ may well determine that the EU does not fit the kind of international organisation promoting peace and justice. But even at the second reading level of the story, the President is legitimately suggesting that political choices must confront the actual circumstance of life. This attitude may be the only key to exposing populist parties.

Graziella Romeo is Assistant Professor of Constitutional Law at Bocconi University (Milano).

(Suggested citation: G. Romeo, ‘It Was a Dark and Stormy Night: The Italian Institutional Crisis and Europe’, U.K. Const. L. Blog (5th Jun. 2018) (available at https://ukconstitutionallaw.org/))

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UK Constitutional Law Association by Constitutional Law Group - 3w ago

This week’s event announcement is below.

~~~

Ireland Post Brexit: Constitutional and Legal Consequences, North and South

13th Italian-British Constitutional Conversation
Monday, 11th June 2018, 4:30pm
Italian Cultural Institute
39 Belgrave Square, London SW1X 8NX

All UKCLA members are welcome.

More information can be found in the flyer below.

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