Constitutions and Political Economy: The Privatisation of Public Enterprises in France and Great Britain

Abstract

This article will be concerned with the effects of differing constitutional traditions and constitutional provisions on policy-making and on policy-delivery, as suggested by a comparison of the implementation of the programmes of privatisation of public enterprises in France and Great Britain. This should provide a particularly useful case study for students of comparative law and politics, as both nations adopted extensive privatisation with the ascent to power of governments of the Right; indeed, the earlier British privatisation programme offered an important source of inspiration for France. However, there have been major differences in the nature of the enterprises to be sold, in the means of evaluation and share pricing adopted and in relations with government after privatisation. I will concentrate on discussion of France, referring to Britain for comparative purposes, as material on British experience is more easily available. Indeed, in some ways this article can be seen as complementing earlier work done in this journal by myself and a colleague on the constitutional implications of privatisation on this side of the Channel.' A number of different aspects of the comparative privatisation process will be of interest to lawyers. Thus, for example, the legal forms and instruments adopted have been very different in the two nations, and this raises themes receiving increasing attention in valuable recent studies of law as an instrument of economic policy.2 However, this type of comparison will not be made here.3 Rather, the central theme will be the degree to which the different constitutional arrangements of the two nations have imposed constraints on the freedom of manoeuvre of governments implementing their privatisation programmes, and, in particular, the degree to which they have succeeded in imposing some degree of public scrutiny on the process of policy implementation. In particular, I will examine the role of the written constitution as interpreted by the Conseil constitutionnel in France in imposing structural constraints on the relationship between governmental policy and broader conceptions of public interest and citizenship. In examining this subject, one finds a major theme in the literature of comparative political economy to be that different patterns of economic development in the two nations can be ascribed in part to differences in the role and organisation of the state. Thus Shonfield, in his pioneering and influential study, associates economic liberalism with a particularly British type of capitalist development: