Wednesday, 12 June 2013

Rules and Their Making

All contracts, treaties, agreements are under-determined.  Why would there be courts, if not for lack of clarity?  Whether the under-determined nature of arrangements backed by law in general is inherent or deliberate is worth thinking about.  But we can be quite sure that the under-determined nature of the European Union Treaties is  their modus operandi.  They were written thus to cover  objection from just about any direction to anything within them we care to think of.

So when the Bundesbank's Jens Weidmann calls into question the precise mandate of the ECB, by questioning the German constitutionality of OMT,   a great fissure opens in the  common front of europhile argument that the Treaties set out the rules.  And not just for Article 123 where, as he amiably admits,

"...there are few countries in the currency union which place such a high worth on article 123 as Germany."   However, as he goes on, "There would be a very wide discussion on what else could be changed, apart from the mandate of the [European] Central Bank."

Any EU member-state choosing to determine the constitutionality of European requirements under their own constitution and before their own constitutional court without, as Germany never has (and Hell would freeze over before it did), referring to the ECJ,  has means to resolve deliberately under-determined EU Treaty statements, and  in conformity with their own constitutional requirements.

For the United Kingdom, whose whole approach to constitutional determination is flexible to the point of idiosyncrasy,  the German challenge to the EU treaty-drafters cunning plan may yet facilitate the growth of a UK constitutional spine. 


Farmland Investment said...

The UK desperately - DESPERATELY - needs a strong Constitution. Between the EU and increased ability for government to do comprehensive surveillance, this is urgently needed.

Nick Drew said...

I do like your constitutionalist perspectives, HG

being myself wedded to Common Law, it is never to the fore in my world view - clearly an omission: one needs as many firm vantage-points as possible to triangulate accurately

slightly tangential, but what's your assessment of this Evans-Pritchard piece ?

hatfield girl said...

Far be it from me...etc., to other than admire Ambrose Evans-Pritchard's post. Marshaling Italy's politico-economic situation into an EU context is a work of art in every sense.

Should Italy take back the sovereign levers of its economy? The current pitched battle that has seen a colpo di stato rather than permit national effective opposition to Eurodiktat shows Italy is trying. So far the statist authoritarian collectivists have succeeded in imposing their 'vision', stamping on the electorate and parliament.

Their insurmountable problem is the economy. Now if only they could have central planning, even some French dirigisme.... The French presidential system, constitutional change for integration with a progressive EU.

At the moment there are 35 appointed constitutional 'experts' plus 40 parliamentary representatives (the photos are hilarious) deliberating restructuring Italy's constitutional back bone. It's not doing a lot for the economy though.

Berlusca's refounding his political party and his ideas to tackle that. Once he's ready, he's not going to listen to 'elections denied' from Napolitano. Napolitano has shown us all the way to deny the results of elections so we might as well do without the voting bit altogether and just go straight to the power takeover. Berlusca has often declared his approval of the direct support of the people expressed in the piazza.

dearieme said...

The US has a Constitution that I greatly admire as a historical document. But it has terrible flaws and laughable omissions; anyway, when the pressure is on, it is ignored. What then is the point of codifying your constitution into a single document styled a Constitution if your constitution will then evolve and eventually triumph over your Constitution? If there are temporary advantages, are they big enough to justify the fuss and cost?

Do you remember the shambles when the dimwitted, unreflective and ill-educated Blair tried to abolish the Lord Chancellor? If making such an apparently minor tweak to our constitution caused such flapping, what on earth would be involved in trying to codify the whole lot?

In a sense we did once have a key part of our constitution codified - the Act of Union of 1707. Key bits were being ignored within a decade or two, so the American experience is not unique.

Weekend Yachtsman said...

@Farmland Investment: it's too late, that boat has sailed.

A constitution written two hundred years ago might have contained some useful common sense and the firm enshrinement of our shared values (where "our" does NOT include the political class).

A constitution written now would be intended to entrench the privileges of the political class, would be rich with entitlements, and would be full of weasel words that would allow the state to do anything it wanted "in the interests of national security" etc etc.

Nick Drew said...

WY - yes, although no student of these matters whenever I read up on our much-vaunted euro "rights" I find they are all subject to national security, it is all completely subject to whim

and look what's happened to the US Constitution under the successive depredations of Bush and Obama

(I always smile when I read that the UK's carbon emission targets are 'legally binding' ... when you read the Law in question it gives the Secretary of State the power to change them if they consider the UK's best interests will be served - after a period of consultation, naturally)