Some thoughts about the proposed
European Constitution; some further thoughts about the axing
of appeals from New Zealand to the Privy Council; some even
further reflections on referenda and whether minorities have the
right to secede in the face of majority steam-rollers; and
a cautionary tale of fiscal profligacy from France.
Constitutions and referendums
As New Zealand axes appeals to the
Privy Council by simple (and narrow) Parliamentary majority,
European politicians are wondering how to enshrine their new
constitution. The debate is not without relevance to New
Zealand's situation since it involves trying to manufacture a
constitutional instrument without a crisis and/or a popular demand
for one. Of course the two initiatives could not be more
different in scale. One resembles a sort of constitutional appendectomy;
the other, a completely new constitutional species never before
tested outside laboratory conditions. But they share a common
thread: constitutional change in the face of broad indifference.
Upton-on-line would not dare to
attempt an analysis of the proposed draft constitution.
Readers will, in any case, have followed the key points of
contention - such as whether every country can have a commissioner,
and whether to adopt the new majority voting rules in the Council of
Ministers (a majority of states representing 60% of the Union's
population). Spain and Poland have joined forces to block this
on the basis that it gives too much weight to the big countries like
France, the UK and Germany.
Suffice it to say that this is no
minor initiative. The articles of the draft constitution run
to a cool 225 pages. The pre-existing complexity of the
European experiment (a confabulation of national and European
parliaments, the Commission, a European Court and a slew of
inter-governmental treaties) almost guarantees that for most people
it will be a question of whether they think 'Europe' is a good thing
and they'd like more of it - or not. Nagging away in
everyone's minds is the question of how such a constitution can ever
acquire popular legitimacy. And that's a question that's in
store for little old post-colonial New Zealand too.
Abstract or popular?
It is instructive to compare the tone
(and length) of the preambles with which the American and proposed
European constitutions open. The American version is
famously brief, yet expansive:
"We, the people of the United
States, in order to form a more perfect Union, establish Justice,
insure domestic Tranquillity, provide for the common defence,
promote the general Welfare, and secure the Blessings of Liberty
to ourselves and our posterity, do ordain and establish this
Constitution for the United States of America."
Compare that with Giscard
d'Estaing's euro-version. It starts with a little
extract from Thucydides in classical Greek which,
translated, reads: "Our Constitution ... is called a
democracy because power is in the hands not of a minority but of
the greatest number". That in itself is
contentious given the mixture of veto-rights, qualified majorities
and shared jurisdictions between Councils, Parliament and the
Commission. But let that pass - the sentiment is what
counts; this is a constitution that erects democracy as its
founding value. The preamble then proceeds as follows:
"Conscious that Europe is a
continent that has brought forth civilisation; that its
inhabitants, arriving in successive waves from earliest times,
have gradually developed values underlying humanism: equality of
persons, freedom, respect for reason,
"Drawing inspiration from the
cultural, religious, and humanist inheritance of Europe, the
values of which, still present in its heritage, have embedded
within the life of society the central role of the human person
and his or her inviolable and inalienable rights, and respect for
"Believing that reunited
Europe intends to continue along the path of civilisation,
progress and prosperity, for the good of all its inhabitants,
including the weakest and most deprived; that it wishes to remain
a continent open to culture, learning and social progress; and
that it wishes to deepen the democratic and transparent nature of
its public life, and to strive for peace, justice and solidarity
throughout the world,
"Convinced that, while
remaining proud of their own national identities and history, the
peoples of Europe are determined to transcend their ancient
divisions and, united ever more closely, to forge a common
"Convinced that, thus
"united in its diversity", Europe offers them the best
chance of pursuing, with due regard for the rights of each
individual and in awareness of their special responsibilities
towards future generations and the Earth, the great venture which
makes of it a special area of human hope,
"Grateful to the members of
the European Convention for having prepared this Constitution on
behalf of the citizens and States of Europe,
"[Who, having exchanged their
full powers, found in good and due form, have agreed as
There you have it: 52 words versus 253
(not counting Thucydides or the bit in square brackets).
Whatever else it is, the European constitution is a wordy
constitution. More remarkable still are the contrasted
voices. Just who is talking here? The US Constitution
is unambiguous - it boldly claims to be the voice of the People.
But the European version? Upton-on-line is not a
constitutional expert and the answer may be blindingly clear to
experts, but to the ordinary reader there is a yawning ambiguity
about whether it is the (unelected) Convention members or the
(allegedly) grateful citizens and States of Europe who are doing
the declaring. Whatever the answer it is quite clear that no
draft European constitution could dare claim to speak for anything
as fundamental as 'the People'.
And are these 'grateful' citizens
really "determined to transcend their ancient divisions"
when the sum total of issues on which the Union is declared to
have exclusive competence comes to just five, namely:
- competition rules for the internal
- monetary policy for those states
that have adopted the euro,
- a common commercial policy,
- the customs union
- the conservation of marine
biological resources under the common fisheries policy.
The partial coverage of the euro says
it all. There would appear to be no sign that Sweden,
Denmark or Britain are going to abandon their currencies.
Why should they when France and Germany have decided that the
fiscal stability pact supposed to underwrite the euro only applies
to other countries. And the inclusion of marine biological
resources seems almost whimsical set alongside all the other
things one could have thought of.
When it is not spelling out legal
powers, the text of the Constitution (and upton-on-line freely
admits to having not read every word of it) is full of
aspirations. The Union (Article 3) shall amongst other
things work for sustainable development, promote scientific
advance, combat social exclusion, respect its rich cultural and
linguistic diversity, and contribute to peace, security, and
solidarity and mutual respect along peoples. EU lawyers
have, apparently, even taken a leaf from the NZ law draftsperson's
armoury: the Union shall "respect ... the principles of the
UN Charter". Does that 'respect for the principles of'
formula ring a bell somewhere?
It would be ignoble to make light of
such ambitious and well-intentioned words. But how can this
hope to command the popular allegiance of a continent of 350
million souls? No-one claims that it will. The most
hopeful supporters believe that having two presidents (one elected
for a two and a half year term by Heads of State meeting as the
Council of Europe) and a second (the President of the Commission
elected by the European Parliament) will create a sense of
democratic legitimacy. Upton-on-line is sceptical.
The truth is that the Constitution has
been negotiated by practiced politicians and others from the
governing classes of Europe. It has none of the raw
immediacy of a document with its roots in a keenly felt sense of
common destiny borne of turmoil and the upheaval of revolutionary
nation-building; there is no sense that the stakes are truly high
or that Europe has been through a process in which a whole raft of
sticking points and 'can't-do' blockages have been swept away.
That's what happened in America's war of independence. It's not
that Europe hasn't been through excruciating traumas. The
two world wars (often termed European civil wars given their
origins on European soil) provided more than enough rationale to
expunge once and for all the pathology of Europe's destructive
But it was not a common enterprise on
which to base a sense of European belonging. The nearest
popular opinion came to a European euphoria was in the heady days
following the fall of the Berlin Wall. Singing Beethoven's Ode
to Joy while passing under the Brandenburg Gate was as good
as it got. The Maastricht Treaty, the euro, and all the
other projects of Chancellor Kohl's generation
may have been made possible by the shock end to the Cold War.
But they were always steps promulgated from the top down.
And now that the mood has faded, how can that leadership class
Putting it to the people
If the constitution cannot unself-consciously proclaim itself to
be the voice of the People, the next best thing seems to be
endorsement by referendum. Some member states like Ireland
and Denmark require it any way. It's the ones that don't -
like France - that are having to soul-seach. One by one,
France's political leaders are leaning towards a referendum - all
the time hastily noting (with undisguised relief) that the
decision to hold one rests wholly in the hands of the President.
The President is handling the issue with kid gloves. As a
number of old sceptics have noted, the French have a particularly
irritating habit of using referenda to answer questions other than
the one on the ballot paper. Like whether or not they approve of
the President! Needless to say there are those who would be
sorely tempted to profit from his discomfort should the referendum
go the wrong way. And, as with many countries around Europe,
there are disturbing signs that the citizenry might not be as
grateful to the drafters of the constitution as its text proclaims
them to be. And yet, it would be bizarre if the only way
Europe could reinvent itself as an 'ever-closer union' was by
running a country mile from rank and file voters.
Constitutionalising in an apathy zone
All of which underlines the difficulties of
trying to erect sweeping - and potentially powerful -
constitutional reforms in the absence of a groundswell. Helen
Clark's determination to press ahead with the removal of
the Privy Council from our legal system without recourse to a
referendum raises some interesting questions. She could well
feel aggrieved by the sudden conversion of some segments of the
parliamentary opposition to being defenders of the status quo.
After all, wasn't it a National Government with Jim Bolger
and Sir Douglas Graham at the helm which set the
whole thing in motion? Why the sudden enthusiasm for a
referendum? And this from a National opposition that
cheerily talks about abolishing the Maori seats by simple Act of
Parliament regardless of the views of the minority that might be
affected. (In fairness to business and professional
opponents of the Privy Council change, their suspicion of the move
has been consistent throughout.)
This sudden outburst of Opposition principle
should have been driven by a desire to invite the public to
consider a different set of questions. Given the fact that
the Blair Government is rapidly disassembling the
bits of the British judicial system into which we once plugged, it
can be argued that it would have been irresponsible not to seek an
alternative to the Privy Council before it too evaporates.
Out of sheer politeness, the British are retaining the Judicial
Committee for those vestigial countries which wish to retain it .
But the institution of a British Supreme Court leaves the Judicial
Committee of the Privy Council high and dry as a relic from a
Surely the real issue was - and still is - all
about rescuing a domestic appellate system from the thin, recycled
air of NZ's judicial system. That's a problem that faces all
small nations and the Privy Council was not the only solution. The
European Court, for example, provides an outlet for Ireland; and
in some parts of the world there are ultimate courts shared beween
nations and jurisdictions in the same region (Caribbean Court of
Justice and the Central American Court of Justice). Australia was
the obvious regional 'docking' point for New Zealand.
On the other hand, there is something worrying
about the Government's argument that the Privy Council issue was
'too complicated' to be submitted to the people in a referendum.
Really? It Was much less complicated than the decision to
adopt MMP? And it is certainly orders of magnitude less
complicated than anything European governments may end up having
to put to their voters. Are we saying here that only banally
simple issues can be risked in referenda? And what are the
future implications for further constitutional reform in New
Zealand? Because to upton-on-line's mind, all the other
issues are far more complicated. It cannot be denied that
the decision to domicile our highest court within New Zealand and
bring it within the appointment processes of the New Zealand
political system, is a step of real constitutional significance.
The parliamentary opposition's concern would be
a whole lot more credible if it sorted out a coherent view of how
constitutional issues should ordinarily be addressed.
Likewise, the Government would be much better trusted if it came
out openly and acknowledged that it is increasingly being drawn
into a re-evaluation of New Zealand's constitutional arrangements.
Treaty of Waitangi-based arguments are increasingly challenging
the limits of majoritarian democracy. The changing nature of
New Zealand's engagements with
Australia and the wider world are also likely to test the
boundaries of sovereignty as we have known them. A broad
constitutional front is opening up regardless of who is in office.
It is far bigger than partisan politics and must be rescued from
can be few people who are satisfied that we can deal with
constitutional issues by simple majority votes in a single chamber
parliament. (Yes, there is some entrenchment in the
Electoral Act, but that doesn't begin to exhaust the
possibilities.) Just how far do we have to go down the
republican road before we trigger the need for broader popular
endorsement? And how far should we venture if public
enthusiasm for messing around with the system barely rises above
apathy? The fact that 80% of New Zealanders reportedly
wanted a referendum doesn't necessarily mean that 80% opposed the
measure. But it does suggest that the people at large want
to control the process or, at
least, slow it down.
Lacking any other constitutional checks, upton-on-line has long
felt that a second chamber would be preferable to asking our
judges to fill in the gaps.
Something to chew on
With all this in mind, upton-on-line was struck by one particular
provision in the new European constitution - Article 59 which spells
out the right of any member state voluntarily to withdraw or secede
from the Union. This is just one of a number of provisions
that underlines the on-going primacy of nation states, however
'close' the Union may become. As such, it is meant to reassure
the sceptics. In going down this road, Europe has consciously
chosen a very different path from that adopted by the States that,
by uniting, became America. Not that the notion of united and
indissoluble states was by any means easily bedded down. In
fact it took a civil war in which Americans killed 600,000 fellow
This is not the place for a digression on the case of the
Southern Confederacy in the American Civil War. But readers
interested in whether or not a right of secession can be argued
within the setting of a duly constituted nation state are strongly
urged to read a recent book by Daniel Farber - Lincoln's
Constitution (Chicago University Press 2003) and in particular
pp 92-114. This is an up-to-the-minute analysis of the
constitutional abyss into which Lincoln stared. It
is something of a revelation, and should provide food for thought
for European and New Zealand constitution builders alike.
As Farber points out, secession is the remedy of last resort for
those oppressed by majority rule. It was a right Lincoln had
endorsed in respect of Texas at the time of the Mexican war.
"A majority of any portion of such people may revolutionize,
putting down a minority, intermingled with, or near about them, who
may oppose their movement." But as Farber points out, majority
rule cuts both ways because "there are two relevant majorities.
One majority lives in the disputed territory and seeks to secede.
The other majority covers the whole country and opposes secession.
The norm of majority rule cannot tell us which majority should
Farber continues in a vein pregnant with significance both for
Europe with its constituent national minorities and for New Zealand
with significant Maori groupings questioning the legitimacy of state
"If a secession option does have any justification, it
is a protection of minority rights. But providing this option
is at best a clumsy way of protecting minorities. A secession
option rather arbitrarily protects only minorities that happen to be
concentrated in discrete geographic regions: it does nothing more
for diffuse minorities for whom secession is not a practical
possibility. Furthermore a secession option makes no
distinction between fundamental minority interests such as
individual liberty and mere pocketbook disputes ... Thus secession
is not in general a promising method to protect minority rights.
"Societies may have other good reasons to commit
themselves in advance against secession. The very possibility
of secession weakens the country as a whole in its foreign
relations, encouraging outsiders to seek separate deals with
subgroups. Moreover, in times of crisis, it may be important
to take action which is beneficial to society as a whole but
sacrifices the interests of a sub-group. In advance, it may be
to the advantage of each subgroup to empower the national government
to make such decisions, taking the risk that when the actual
situation arises, they will be the disfavored group rather than the
part of the benefited national majority ... There may be good reason
to precommit to a perpetual Union, just as it may be advantageous to
enter into a binding legal contract, even though such contracts do
not always turn out to be beneficial in the end. Thus, from
the point of view of democratic theory, "secession on
demand" is not a particularly attractive concept..."
In the end, Lincoln and the North denied the right to secede - by
force. Europe, possibly sensing the fragility of the bonds
that bind it, has opted to provide for the possibility. And
what of New Zealand? Did the Treaty of Waitangi create a
'perpetual union'? This is an issue that can almost certainly
not be avoided if there is any wholesale alteration to the
foundations of the constitutional 'settlement' that for better or
worse has emerged out of the wreckage of the land wars, the Statute
of Westminster, the various changes to the electoral system, the
revivification of the Treaty of Waitangi and (most recently) the
abolition of the Privy Council.
Most obviously there was a Treaty signed between Crown and
certain iwi. Whilst the reality may be that the Crown and the
Parliamentary majority have become one, that happy coincidence of
untrammelled executive power in Parliament would not go unchallenged
in an attempt to rid us of the monarchy. If the Crown were not
there, some would argue that all bets are off. How would the
Parliamentary majority (whatever its colour) respond to a distinct,
secessionist movement? If it was a geographically distinct
majority, would Parliament simply deny it?
This is all uncomfortable stuff. But it's there beneath the
surface of many debates in New Zealand - just as it is in Europe
whether we are talking about Corsican or Basque nationalists today,
or the possibility of small minorities finding the yoke of Brussels
intolerable tomorrow and seeking to trigger clause 59. None of
this is easy to think about in an apathetic vacuum. But as
Lincoln found, it is an excruciating and searing experience in the
heat of civil war. In which case, perhaps the Europeans are
right to provide for it in advance.
The really interesting question to which any New Zealand
politician should address herself is this: if you were contemplating
a constitutional upheaval, how would you open your preamble?
Would it begin "We the People..." or would it search for
abstract pieties? And if it couldn't begin "We the
People..." then what does it say about the usefulness - or
durability - of trying to impose anything by Parliamentary majority
or even by majority in a referendum? Europe, scarred by a half
century of incredible bloodshed and brutality knows what it doesn't
want, but can't get beyond the abstract in saying what it does want.
New Zealand, scarred by the breakdown of one constitutional order in
the 1860s and living amidst the slow decay of its successor 140
years on seems equally rudderless. Constitution-building in a
sea of apathy is a soul-destroying business.
Fiscal tales of a cautionary nature
Upton-on-line has been fascinated to
watch the levels of fiscal alarm that have been successively raised
as the French economy has coasted to a halt over the last two years.
It is a textbook case of how a deepening crisis causes unthinkable
ideas to become only unmentionable, then by degrees, mentionable (on
the basis that they will be dismissed), mentionable (in the hope
someone will take them seriously) and finally mentioned as
"the heart of the issue".
With state indebtedness now set to
break the 60% of GDP barrier (€15,000 per citizen) and the budget
deficit oozing out towards 4% of GDP, all sorts of sacred cows are
in danger of being offered up on the altar of fiscal rectitude.
And it is all happening in a climate of plummeting national
confidence. Unemployment is nudging 10% when in the UK a
figure of 3.1% is getting pretty close to full employment. Not
only is the European Commission threatening sanctions for breach of
the euro-zone stability pact; books are starting to pour off the
printing presses with titles like Adieu à la France qui s'en va
by Jean-Marie Rouart (which one might loosely
translate as Farewell to France on the Skids) and La France qui
tombe (France in Decline) by Nicolas Bavarez.
Needless to say, these counsels of
doom are fiercely contested by those with a stake in the status quo
- of whom there are rather a lot. Depending on how you define
it, the public sector employs anything between 3 million and 6
million people. They're not exactly volunteering for the
funeral pyre as a way of making ends meet. Even ministries in
which you would expect a fiscally anorexic mindset are beyond hope:
there are roughly 50,000 people employed in the Ministry of Finance
alone and 12,000 in the Bank of France (yes: 12,000 and that's in a
central bank that no longer runs a national currency!). With
legions of functionaries like this what hope has a reforming
politician? As Maurice
Druon, a distinguished Academicien
remarked recently, France enjoys the questionable distinction of
being the sole remaining semi-communist country in Europe.
But none of this has stopped brave
souls proposing all sorts of solutions. Some are quaint - set
up a committee to investigate simplifying things was one suggestion.
(Sir Humphrey apparently has a French cousin) Others are
splendidly whimsical. France still has a television licence
fee whose collection apparently occupies some 1500 functionaries.
An academic economist, Jacques Marseille, has
proposed adding it on to the habitation tax to save €40 million in
one hit. For the twenty five and a half French citizens who
don't have a television he proposes a simple declaration on the tax
return which would enable people to state: I swear on my honour that
I don't possess a television. (Why has no-one thought of this
before for all sorts of taxes?)
Alain Minc proposes
asking every citizen to pick up the first €100 euros of the health
costs (including hospital charges) paid for by the State (with of
course an exemption for those with meagre resources).
Upton-on-line seems to recall that this approach is an absolute
winner until implemented. (M Minc, in fairness, describes it
as 'revolutionary' and unlikely to happen). Perhaps the
biggest sacred cow to be put on the table is the 35 hour week.
It was immediately taken off again by the Prime Minister who still
has it in the 'unmentionable' category. But it won't go away.
France's fiscal problems are not
unique. They have, in various shapes and forms been faced by
politicians in every western democracy who have viewed economic
growth as a given available for redistribution. When the
redistributive process becomes so inflexible and creaky that growth
grinds to a halt, the crisis that follows is painful. But
nowhere has it been terminal. Countries like France were rich
enough to delay taking action for longer than most. No doubt
she will undertake the appropriate Atkins plan. The
expressions of national woe and musings on 'unthinkable' solutions
are a healthy sign.
It's countries like Australia, New
Zealand and Britain that should be worried. As with all sorts
of degenerative diseases, the damage is done during the good times.
All sorts of problems get bought off and new layers of bureaucratic
fat get laid down. Labour market 'protections' are happily
embraced. And each, looked at singly, can be stoutly defended
if not always on grounds of principle, then on grounds of broking a
deal. But combined they add to a slowly gathering sclerosis.
As France goes under the knife, on-lookers would do well to note
that, there but for the grace of God or a dour finance minister, go