Constitutional Settlement Research Articles

Fundamental Rights in the DCFR

The development of a 'Common Frame of Reference for European contract law' coincides with the search for a 'lasting constitutional settlement' within the European Union. This paper analyses the CFR drafted by a group of academic experts (DCFR) from a constitutional perspective, paying particular attention to the impact that fundamental rights may have on the application of its general clauses ('good faith', 'reasonableness'). It is submitted that, although the constitutionalisation of the DCFR has not yet been completed, the document does deserve admiration for the explicit manner in which it recognises the relation between contract law and constitutional law. It thus presents an excellent framework for elaborating the debate on both a European Civil Code and a European Constitution.

Carolene Products Footnote Four and the New Deal Constitutional Settlement

This brief Article discusses the 1938 U.S. Supreme Court’s infamous footnote four in its decision in U.S. v. Carolene Products. It was this footnote that suggested how the New Deal Court would conduct future judicial review. According to this footnote, the Court would give more heightened scrutiny to legislation impacting liberties found in the Bill of Rights than to legislation impacting economic or property rights.

The Fifth Republic at Fifty: The Changing Face of French Politics and Political Economy

At its inception, a time of great political upheaval in France, it was uncertain whether the new regime would last five years, let alone fifty. The longevity of the regime is due in part to its flexibility and adaptability, which is a theme explored both below and in all of the contributions to this special issue. To set the scene, this will briefly elucidate some of the elements of the constitutional settlement of 1958 which have had an important bearing on its subsequent evolution. The rich and varied texture of French Republicanism makes it in one commentator’s eyes at once ‘the least precise and most evoked concept in the French political lexicon’ (Hayward 2007: 343). The Fifth Republic’s institutions and practices bore the imprint of a diverse amalgam of constitutional norms and political practices, each relating to the French Republican tradition; Rousseauian notions of general will, plebiscitary Bonapartism, parliamentarism, Jacobinism, dirigisme and Republican notions of universalism and egalitarianism. This special issue explores some of the interesting patterns and dynamics of change and continuity in relation to each of these aspects of the French Republic tradition over the last 50 years. As is fitting on such an anniversary, each contribution will offer a brief historical overview of the issue area and to look at the similarities and differences between the contemporary period and 50 years ago.

Bringing rights home: time to start a family?

Proposals for a new constitutional settlement have highlighted issues, many of them factitious, about the Human Rights Act. This paper suggests that the relationship of rights to duties is poorly understood, and that the majority of recognised rights already carry corresponding duties, but that to try to make the enjoyment of rights conditional on the fulfilment of duties is neither principled nor practicable. It is suggested that, using mutual respect as a sounder basis, a larger Bill of Rights can be contemplated. But good constitutions cannot be willed into being: pending the arrival of a constitutional moment, reform is likely to be a process of interest-group wrangling in which the most that can be looked for are some modest but necessary reforms.

The European Union’s governance of health care and the welfare modernization agenda

AbstractIn the face of “permanent welfare austerity,” the European Union (EU) is increasingly involved in the governance of health care through various “new governance” tools. This development coincides with a growing interest in modernization of welfare, including health care. One of the fundamental critiques of new governance in the EU context concerns the (perceived) inability of new governance to protect the “social” against the “market” in Europe’s constitutional settlement. Using multi‐level governance and constructivist approaches, this article considers whether the EU’s governance of health care via the “Open Method of Coordination” advances a neo‐liberal agenda of health care modernization.

The European Constitutional Settlement

This paper argues first that a synthesis of the theories of endogenous policy formation, non‐coercive interstate bargaining theory, and international regime theory provides a plausible account of the path of European integration, with little role for explanations stressing geopolitical or ideological factors, international mediation, or political entrepreneurship. Moreover, these theories – which embrace economic fundamentals as driving factors – help explain the ‘sequencing’ of the European Union, especially in regard to successive enlargements. However, the paper concludes that the process of European integration appears to have reached an ‘institutional plateau’, for which incremental change based on the current ‘constitutional compromise’ appears to be the only plausible equilibrium.

After Finalité? The Future of the European Constitutional Idea

This paper sets out to examine the prospects for EU constitutionalism in the light of the protracted and perhaps insuperable difficulties surrounding the ratification of the 2004 Constitutional Treaty. It argues that these difficulties simply reinforce the need for thinking about the EU's constitutional settlement in non 'finalist' terms. The EU polity has always been and remains dynamic and open-ended, and so the attempt to 'contain' it within a final settlement is probably in practice misconceived, as well as leading to deep disagreement about the terms of any such purported final agreement. The constitutional idea remains a powerful one - a key way for the European polity to think about itself seriously as collective project rather than the sum of it various national parts - provided the association of constitutional thought and method with finalite is broken.

Fettered Independence: Cyprus 1878–1974 (review)

Reviewed by: Fettered Independence: Cyprus 1878–1974 Van Coufoudakis Stella Soulioti , Fettered Independence: Cyprus 1878–1974, 2 vols. Minneapolis, MN: Minnesota Mediterranean and East European Monographs, University of Minnesota, 2006. Vol. I, pp. 626; Vol. 2, pp. 824. $100.00. This two-volume book is the 16th in the series published by the Modern Greek Studies Program at the University of Minnesota, and the eighth devoted to Cyprus. The series as whole constitutes a major and important addition to the scholarly literature on Eastern and Southeastern Europe, and the book under review here continues this tradition of excellence. In Volume I the author examines the political and diplomatic developments on Cyprus from the British takeover in 1878 to the constitutional crisis of 1963 and its aftermath. Volume II is an invaluable collection of more than 100 documents produced between 1929 and 1964 and drawn from the author's personal and hitherto unpublished archive. Thanks to Ms. Souliotis friends, these archives were saved from destruction during the 1974 Turkish invasion. A booklet with maps supplements this two-volume set. Other historians and political scientists such as Robert Holland, Diana Markides, G. S. Georghallides, Evanthis Hatzivassiliou, and Stanley Kyriakides have given us significant insights into this time period. Ms. Souliotis augments and expands on this solid body of work by providing not only the assessment of someone who participated in the critical events of the post-WWII period, but by also making available primary sources that support her analyses. The author comes from a highly respected Cypriot family. She is a British-educated barrister with a distinguished legal and political career in Cyprus. She was the first woman to serve as Minister of Justice (1960–1970), Law Commissioner (1971–1984), and Attorney General (1984–1988). In addition to holding these political offices, she has been a personal advisor to every president of Cyprus since its foundation. Thanks to her interest and commitment to building a public archive, she has meticulously accumulated perhaps the most complete documentary record on the diplomacy of twentieth century Cyprus. She provided reasoned and informed advice to successive Cypriot presidents who relied on her knowledge and access to key historical sources. Her carefully balanced and sensitive account of the critical decades of the 1950s and 1960s must be read by anyone interested in Cyprus. Her deep knowledge of key personalities in the Greek and Turkish Cypriot political arenas, her direct involvement in the events of the period, and her familiarity with the relevant archives in Cyprus, the United Kingdom, and elsewhere, provide the reader with an insightful analysis relevant even to today's developments. Her methodical and critical analyses address the actions of all the parties involved in the Cyprus Question and offer important insights on President Makarios' decisions and actions. In her introduction, the well-known British constitutional lawyer, Claire Palley, correctly notes that this is an important and brave book that touches on the sensitivities of all protagonists. More importantly, this book is not a self-serving memoir justifying the author's actions and ideas. The author describes British colonial policy as one of retrogression rather than progression. It denied both communities their national identity as well [End Page 340] as access to democratic institutions. Yet Greek Cypriots had fought for Britain in earlier wars. Britain's refusal to come to terms with Greek Cypriot political aspirations in an era of de-colonization led to the 1955 liberation struggle. The struggle on Cyprus gave Greek Cypriots a set of values and a heightened sense of dignity and self-respect. Britain's harsh countermeasures did much to increase support for the Greek Cypriot struggle. Looking back the author concludes that the struggle may have lasted too long, contributed to the rift between Archbishop Makarios and General Grivas, deepened the split between the two communities, and increased the tensions between Greece and Turkey. Ms. Souliotis examines the six attempts at a constitutional settlement in Cyprus between 1955 and 1958 and gives the reasons why each of them failed. In 1956, during the presentation of Lord Radcliffe's proposals, Turkey formally introduced the idea that any settlement had to include legal equality, political autonomy based on federation, and separate...

The Reason Why: The English Constitution and the Latent Promise of Liberty in the History of Accounting

In 1215 Magna Carta determined freedom from executive oppression, or liberty, as the essential principle of the English Constitution and parliament as the bulwark against executive attempts to diminish the liberty of individuals. This constitutional precedence of liberty was confirmed after the Revolution in 1688 by the constitutional settlement which strengthened the financial accountability of the executive to parliament. Regular accounting for military expenditures especially became a critical component of the new accountability measures. Despite the overwhelming significance of liberty for the English Constitution and the contributions of accounting to preserving liberty, public sector accounting continues to attract few accounting historians. As a consequence, the vast historical resources contained in British Parliamentary Papers and the records of parliamentary debates continue to go largely unnoticed by all but a few accounting historians.

The Democratic Deficit and the European Union's Constitutional Settlement

The Democratic Deficit and the European Union's Constitutional Settlement

Europeanisation without Democratisation: A Critique of the International Community Peacebuilding Strategy in Bosnia and Herzegovina

The academic debate over the role of the International Community in Bosnia and Herzegovina (BiH) centres preponderantly on the legitimacy of intervention, as exemplified by the High Representative’s ‘Bonn powers’. By contrast, international officials and policy makers often place emphasis on the effectiveness of engagement. The author makes the case in this article that this implied trade‐off between democracy and efficacy is predicated on a stable constitutional settlement. With no such agreement yet in place, the reforms championed by the International Community risk re‐opening at every turn conflicting notions about the territorial integrity and powers of the BiH state. Reducing the risk of institution‐building and promoting domestic political and economic renewal requires a shift in strategy towards support for constitutional reform.

Constitutionalising Subsidiarity in Integrated Markets: The Case of Tobacco Regulation in the European Union

Abstract: The article establishes three propositions. First, if a constitution establishes the principles of subsidiarity and proportionality as legal principles, questions of competencies are closely tied up with questions of regulatory policy. This means that the Treaty carves out a powerful role for the Court of Justice to assess the jurisdictional reasonableness of market intervention when reviewing whether the EU was legally competent to act. Second, general scepticism about courts being able to play such a demanding role in policing jurisdictional boundaries in federal systems are unjustified in the EU. The new procedure established in the Constitutional Treaty, which is likely to be included in any renegotiated constitutional settlement, involves national Parliaments and the Commission building a written record addressing the relevant policy issues on which the court can base its review. Additionally national courts serve as an external check on the Court of Justice, disciplining the Court of Justice to focus on taking competencies seriously or facing the prospect of national courts disapplying EU law on the grounds that it was enacted ultra vires. Third, even though there are some promising points of departure in its case law, the Court of Justice has not yet adopted a doctrinal framework that effectively operationalises the Treaty's commitment to subsidiarity and proportionality in the context of the common market.

What can we learn from the collapse of the European constitutional project?

The draft European constitution sought to legitimate the EU by inducing more popular deliberation about Europe’s future. This strategy was doomed to failure because it is inconsistent with basic empirical social science about how advanced democracies work. Salient political rhetoric and increased opportunities to participate do not, as a rule, generate more intensive and informed public deliberation or greater public trust, identity and legitimacy — particularly where the issues in question are not highly salient. Two conclusions follow. First, the failure of constitutional reform is, paradoxically, evidence of the success and stability of the existing “European constitutional settlement.” The rhetoric of federalism has not changed to reflect this new reality. Second, prescriptive analysis of real-world constitutional reform requires that normative theorists draw more heavily on empirical social science in order to ascertain to what extent institutions actually have the consequences ideally ascribed to them.

British Local Government: A Case for a New Constitutional Settlement

As a creature of Statue, British local government is subject to constant change emanating from a superior constitutional source: central government. Much of the change that is imposed upon local government because of the need for governing institutions to respond to two competing sets of requirements: those that drive and are driven by either, technocracy or democracy. In all major reorganisations of local government, the attempts tofind a structuralfit between these two mutually antagonistic factors have seen the latter lose out to the former The question of local government size is part of the clash between technocracy and democracy that has been played-out in various reforms of local government in Britain. Indeed, current discussions about unitary councils and city-regions will ultimately result in larger, more remote and technocraticaly driven units of local government The article sets out a construct for British local government that would rest on the creation of a new constitutional settlement between the centre and the localities. It explores the role newly empowered local government could play within the context of a federal UK, and addresses how the politics of these new councils should be conducted. The article also explores what new formns of political accountability would be required in this new constitutional settlement and to whom local government should be accountable. It also examines the mechanisms by which that accountability can be secured. The article sets out a radically new context for central local relationships resting on a new balance of political power; responsibility and accountability.

What Does It Mean To Be Free? The Concept of 'Free Proof' in the Western Legal Tradition

This article seeks to demonstrate two things. The first is that any discussion of free proof must be considered in the context of the fact–finding process as a whole. The second is that debates about free proof are only partly about epistemology, but become impassioned because they go to the core of the constitutional settlement: what is the justifiable basis on which the court, as an organ of the state, decides whether an individual (citizen) is telling the truth, and consequently whether the state should exercise its power to deprive an individual (citizen) of her liberty or property in some way. What this article does not seek to consider is the extent to which, or the manner in which, different stages in the evidence lifecycle should be free or constrained. It seeks solely to clarify the nature of the conceptual space within which that debate takes place.

Reconciling with the Past: John Willis and the Question of Judicial Review in Inter-War and Post-War England

This contribution was prepared for a conference at the University of Toronto Faculty of Law in honor of John Willis, the late Anglo-Canadian administrative law theorist who died in 1997. It will appear in a symposium issue of the University of Toronto Law Journal, entitled "Administrative Law Today: Culture, Ideas, Institutions, Processes, Values – Essays in Honour of John Willis." Throughout his career, John Willis puzzled over the way in which both popular and elite opinion in England (not to mention throughout the Commonwealth and in the United States) persistently, and in his view uncritically, equated the "Rule of Law" in important respects with judicial review in the administrative state. Willis believed this attachment to judicial review as a legitimating mechanism was the result of a misguided focus on "the problem of reconciling," as he called it. This referred to the adjustments needed both in the structures of administrative governance as well as in public law so that, on the one hand, effective state intervention could proceed but, on the other, it could still be understood as "constitutional" and "democratic" in a historically recognizable sense. This article views Willis's discomfort with the "problem of reconciling" as itself problematic. His disparaging attitude toward the place of judicial review in the administrative state was an outgrowth of a limited and one-sided conception of historical change that focused on structural evolution while in effect dismissing its cultural dimension except as a force of obstruction and resistance. Part I of this article summarizes the debates over legislative delegation and administrative justice in interwar England in order to give a sense of the legal-political environment in which Willis came of age as a scholar. Part II turns to the two decades after 1945 to examine efforts by legal and political actors in England to arrive at a more or less stable settlement over the role of judicial review in the administrative state. Willis did not participate directly in these postwar debates because of his move to Canada in the mid-1930s; nevertheless, he continued to view English developments as a kind of analytical baseline for examining the interaction of administrative governance and parliamentary democracy more generally, whether in Canada or elsewhere in the Commonwealth. This paper concludes by reflecting on the writings of Willis at the end of his career in light of efforts in postwar England to achieve a constitutional settlement over the place of judicial review in administrative law.

Executive power in the new European constitution

Paul Craig is certainly correct when he states that the prospective constitutional allocation of executive authority under the new constitutional settlement, as spelled out in the Treaty establishing a Constitution for Europe, or constitutional treaty, which finally emerged in June 2004,1 does not give a simple answer to the question regarding the locus of executive or administrative power within the European Union (EU).2 Even leaving aside the plethora of advisory bodies3 and independent agencies in the EU landscape, no fewer than three institutions can and do lay claim to executive and/or administrative authority within the EU: the European Commission, the Council of Ministers, and the European Council. (To this list, we might add the minister of foreign affairs, who, although associated with the work of the European Council and the Council of Ministers, and serving as a vice president of the Commission, would have a distinctive executive profile in his or her own right.) If we were to try to reconstruct in a simple, nonhistorical way the thinking that guided the constitutional convention in matters of institutional design, we would find (leaving external relations aside) that creating a unified, coherent executive or administrative power was not a very important consideration, perhaps not a consideration at all. To put into perspective the ultimate shaping of EU executive and administrative authority under the draft constitutional treaty, it may be useful to identify the institutional impulses—that is, the sense of imperatives—that did, in fact, take priority and that, once decided upon, inevitably constrained the architecture of the executive and administrative function that followed.

European governance: Executive and administrative powers under the new constitutional settlement

The interinstitutional balance of power within the European Union (EU) is central, indeed crucial, to the proposed new constitutional order when viewed from the perspectives of legitimacy/democracy and efficacy. It is not surprising, therefore, that this topic has been contentious. Nonetheless, the member states agreed to the Treaty establishing a Constitution for Europe at the Brussels European Council in June 2004.1 The discussion that follows will take account of the changes made to the provisions concerning executive power by the 2003 intergovernmental conference (IGC).2 Section 1 of this article begins by examining the process in the convention for deliberating on the institutional aspects of the draft constitution. This is followed in section 2 by an analysis of the differing issues relating to executive power considered by the convention. It is clear that the constitutional treaty embodies a regime of shared executive power; section 3 considers how this might operate in

Moving from Input Controls to Output Controls Using the Partnership Approach in Australia's Southern Shark Fishery

The Australian Fisheries Management Authority (AFMA) maintains a firm commitment to managing Federal (Commonwealth) fisheries resources for the benefit of the community as a whole. The AFMA model centres around a partnership approach in which a wide range of stakeholders are actively involved in the process of developing and implementing fisheries management arrangements for Commonwealth fisheries. Central to AFMA's partnership approach is the establishment and operation of Management Advisory Committees and Fisheries Assessment Groups for each major fishery managed by AFMA. AFMA successfully moved the Southern Shark Fishery from input controls to output controls over a period of 5 years. AFMA achieved this by using the partnership approach with the Southern Shark Fishery Management Advisory Committee (SharkMAC) and the Southern Shark Fishery Assessment Group (SharkFAG). In the two year period since output controls were introduced on 1 January 2001 the industry has undergone considerable change. Some fishers are finding it difficult to operate in the current environment. Industry and AFMA must continue to work together under the partnership approach to ensure the school shark stocks are rebuilt and environmental standards are maintained and further improved to ensure the long-term sustainability of the fishery. The Structure of Australian Fisheries Australian fisheries are essentially managed by the Federal government, whose jurisdiction usually extends from 3 nautical miles from the coastline out to 200 nautical miles and more recently with the ratification of United Nations Fish Stocks Agreement onto the high seas for its flagged State vessels. State government fisheries agencies manage inshore and offshore fisheries out to 3 nautical miles. In cases where single stock, area or fishing method management is required, the Federal and State governments generally reach agreement on a single jurisdiction having responsibility for a fishery through an Offshore Constitutional Settlement Arrangement.

Constitutional features of the UN plan for Cyprus and its antecedents

This study first contrasts the constitutional features of the April 2004 UN Plan for a Cyprus settlement with earlier UN proposals. Analysis of the Plan shows how it bypasses the two existing states in the formation of a federation, and how the constitution is influenced by the adoption of some features from the Belgian and Swiss constitutions. The constitutional settlement is seen to favor the Greek Cypriots, despite their overwhelming rejection of the Plan as a whole. Though now difficult to revive, the Plan is still considered to be “on the table” by the international community. The EU is meanwhile considering ways to relieve the isolation of the North.