affiliated to the International Association of Constitutional Law
Professor Nicol’s critique of Another Europe is Possible and DiEM 2025 is undoubtedly engaging. But it confuses constitutional law with policy enacted through the law and can only be justified by adopting a rather one-sided reading of the EU treaties. Ultimately, in failing to offer a corresponding analysis of the international law position of the UK, he appears to embrace oligarchy or anarchy as preferable positions to a democracy that makes decisions with which he disagrees.
Fundamentally Professor Nicol’s analysis is mistaken in conflating law and power. Law is one expression of power but, in the 21st Century, economic, political and cultural power often outbalances legal power. Constitutional law alone can only have limited effect when global and transnational power dynamics minimise the scope and impact of domestic law. The future of progressivism in the UK simply cannot be divorced from the future of progressivism on a global scale. In providing for cooperation and legislation beyond state level, the EU is essential for a more democratic world. The alternative to EU membership is to submit UK law to the whims of powerful and unaccountable forces which will make the UK’s democratic constitution effectively irrelevant.
Law or policy
While he adopts the language of constitutional law, Professor Nicol’s critique often appears to focus on policies enacted by the EU. He insists that the EU is a “neo-liberal” institution, yet only succeeds in demonstrating that the EU Commission pursues some “neo-liberal” policies. But the EU President and Commissioners are nominated by the Member State governments and must be approved by the European Parliament (which is directly elected by citizens of the Member States). The citizens of Europe get two voices in the selection of the Commission: once through their elected domestic government and again through the directly elected European Parliament. While undoubtedly flawed, the EU contains, in its elected institutions, the means for its own salvation.
If the EU is “neo-liberal” it is because successive electorates, domestic and European, have elected “neo-liberal” governments and MEPs. But this same organisation has also passed policies that are benefiting workers, the environment and minorities. Professor Nicol’s problem isn’t with the EU but with broken electoral systems across Europe. The solution is to reform our democracy, not withdraw from the only organisation capable of enacting democratic reforms on a continental scale.
EU Constitutional Law
Professor Nicol’s chief assertion is that the EU is constitutionally incapable of adopting progressive policies. But his analysis is based either on an excessively narrow construction of the relevant treaty provision or an understanding of progressivism shared by only those at the most extreme end of the political spectrum.
Professor Nicol suggests that Arts. 107-8 of the Treaty on the Functioning of the EU (TFEU) entrench “neo-liberalism” by allowing the Commission to vet the provision of state aid. Yet the subsequent provisions in Art. 107 specifically exempt state aid that has a social purpose. Art. 108 also provides for a review by the European Court of Justice (ECJ). It seems somewhat extreme to reject the suggestion that a state’s interference in the market should be subject to reasonable limits. Presumably Professor Nicol would not reject a law that, for example, acts to prevent governments rewarding their supporters by provision of state aid. Arts. 107-8 seek to strike a balance between unfair interference and necessary support.
The ECJ took an anti-union stance in Viking in limiting industrial action which unreasonably interferes with free movement. But it is not clear that this decision would be made the same way in the light of the EU’s accession to the European Convention on Human Rights (ECHR – provided for by Art. 59 of the Lisbon Treaty – hardly a “neo-liberal” provision). The ECJ will have to take into account the decisions of the ECHR in Demir and Enerji Yapi-yol Sen, which provide for a significantly expanded construction of worker’s rights.
The Ruffert judgement doesn’t (as Professor Nicol appears to suggest) concern industrial action, but whether a state may require public contractors to pay the minimum wage. While Professor Nicol and I may be united in our disagreement with this decision, the ECJ is not bound by its own precedent so, like many regressive decisions, Ruffert may be overturned by reference to new authority (such as the ECHR) or obviated with primary legislation.
Professor Nicol argues that “it is difficult to imagine how nationalisation of branches and subsidiaries of companies based in other Member States would constitute a lawful limitation on freedom of establishment.” Yet Art. 49 permits exceptions on grounds of public policy, health or security. While Professor Nicol does not refer to authority to support his contention, the municipalisation of energy in Germany provides an example of a transfer from private to public ownership that is acceptable according to Art. 49.
Would it be better if we leave?
Even if he is correct regarding all of the above points then Professor Nicol’s argument still fails on the question of what happens after Brexit. Withdrawing from the EU will mean exchanging a set of legal norms, with which we may disagree but which we can change through the democratic process, for a far more regressive set of norms, established with no accountability to the electorate.
If the UK leaves the EU, then it will need to negotiate new trade treaties with EU members and other treaty partners. The UK government has expressed a preference for investment protection measures enforced by Investor State Dispute Settlement tribunals (ISDS). Investment protection clauses effectively bind governments. Legislation is limited to that which does not infringe on the interests of profits of international investors. ISDS tribunals are not bound by precedent and are made up of ad hoc arbitrators (who are generally commercial lawyers who act for multinational corporations (MNCs) when not acting as arbitrators) rather than judges. ISDS tribunals are often not subject to appeal and are not obliged to publish their reasoning. Only international investors can access remedies in ISDS (so ordinary citizens are excluded) and, while ISDS tribunals may take the public interest value of regulation into account, they do not defer to it.
Compare this with the EU system. While EU law undoubtedly places limits on domestic legislation, EU law is subject to democratic accountability through the Parliament and enforced by a public court, accessible to all and staffed by full time judges who are appointed by elected governments. The ECJ also respects the right of Member States to regulate in the public interest by deferring to regulation that passes the proportionality test. It seems somewhat counterintuitive to replace a set of norms based on the democratic mandate and the rule of law with one in which accountability and judicial remedy are entirely the preserve of a small elite. It seems particularly absurd to do so in the name of progressive values.
Nor would leaving the EU exempt the UK from the Transatlantic Trade and Investment Partnership (TTIP) or the Comprehensive Economic and Trade Agreement (CETA). If either of these treaties are ratified before the UK leaves the EU (which will be at least two years after a referendum result) then they will bind the UK for a minimum of twenty years regardless of its membership in the EU.
But the most pressing constitutional argument pertains to the informal exercise of power. Globalisation enables MNCs to exert pressure on governments. They can establish themselves anywhere in the world and states must compete to attract their business. This gives MNCs power over states. But this imbalance of power only exists when states act as competitors. When states cooperate MNCs are no longer able to play them off against each other. Thus, as the largest economic block in the world, the EU is the best chance citizens have to exercise power equivalent to MNCs. An electorate in a state acting alone and in competition with its neighbours is never likely to have the power to demand a Tobin tax or measures to address tax avoidance. The demands of democratic accountability will always be outweighed by the need to attract investment. But when electorates act in solidarity, their voices are magnified by more than the sum of their parts.
Professor Nicol is correct to say that the requirement for unanimity makes reform of the EU difficult. But this is the nature of cooperation. While Professor Nicol and I would undoubtedly agree in our opposition to many of the policies of the EU, I disagree with the contention that the EU is constitutionally incapable of reform. The nature of democracy is that it cannot please everyone, but that is not sufficient reason to abandon attempts at regional democracy altogether. In a globalised century domestic constitutional law cannot be divorced from its international context, and progressive reforms can only be achieved by supporting greater democracy and the rule of law at an international level. Withdrawal from the EU risks not only irrelevance but a collective surrender of control over our own destiny.
Sam Fowles, Doctoral Candidate, Queen Mary University of London and Spokesperson for Another Europe is Possible
(Suggested citation: S. Fowles, ‘In Defence of Europe’ U.K. Const. L. Blog (9th Mar 2016) (available at https://ukconstitutionallaw.org))