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Published online by Cambridge University Press: 27 October 2017
The failure of any constitution-making process is deeply disappointing for some and a source of satisfaction for others. The satisfaction of the latter may be short, or at least not long-lived, however, if it subsequently turns out that the changes were necessary, or even demonstrably useful. Initial failure in a constitutional project is relatively common, for reasons that range from the difficulty of the process to the novelty and perceived significance of the issues at stake. Experience suggests, however, that, at least where the rationale for the constitutional proposals was sufficiently soundly based, failure may not be the end of the story. It follows that it makes sense to take stock after such an event: to identify what is lost that was of value; to determine what, if anything, might be improved, if another constitutional moment presents itself; and to consider whether constitutionalisation should be attempted again, or whether other mechanisms can be used instead.
1 Thus, in Australia, the failure of the first attempt to introduce a federal Constitution in the early 1890s was followed by another, successful attempt in 1897–99: Quick, J and Garran, R The Annotated Constitution of the Australian Commonwealth (Sydney, Legal|Books, 1976)Google Scholar. In an example of a different kind, the failure of the proposed changes to the Canadian Constitution emanating from the Meech Lake round in 1987 was followed by another attempt at constitutional change in the Charlottetown Accord, which also failed, in 1992. On the other hand, the failure of Charlottetown itself was followed by a range of extra-constitutional measures designed to secure at least some of the effects of the proposed changes by other means: Russell, P Constitutional Odyssey: Can Canadians Become a Sovereign People? 3rd edn (Toronto, University of Toronto Press, 2004) ch 12 Google Scholar.
2 The referendum was held on 29 May 2005: 54.68% of a total turnout of voters of 69.34% rejected the Constitutional Treaty.
3 The referendum was held on 1 June 2005: 61.7% of a total turnout of voters of 63% rejected the Constitutional Treaty.
4 For the current status of the treaty in all the Member States see Europa, A Constitution for Europe, avilable at http://europa.eu.int/constitution/ratification_en.htm, viewed 21 April 2006.
5 The category covers a wide spectrum of governing arrangements employing the principle of federalism including federations and confederations: Watts, R ‘Contemporary Views on Federalism’ in De Villiers, B (ed) Evaluating Federal Systems (London, Juta and Co, 1994) 1 Google Scholar.
6 http://europa.eu.int/constitution/futurum/documents/offtext/doc151201_en.htm viewed 21 April 2006.
7 The theme can be traced back further still: see Douglas-Scott, S Constitutional Law of the European Union (Harlow, Longman, 2002) 142 Google Scholar, drawing attention to the 1993 Inter-Institutional Declaration on Democracy, Transparency and Subsidiarity.
8 Protocol on the Institutions with the Prospect of Enlargement of the European Union; Protocol on the Role of National Parliaments in the European Union, www.eurotreaties.com/amsterdamtext.html, viewed 20 January 2006.
9 Declaration on the Future of the Union, OJ 2001 C 90/86.
10 European Convention, Draft Treaty Establishing a Constitution for Europe, OJ 2003 C 169/01.
11 Von Bogdandy, A ‘The European Union as a Supranational Federation: A Conceptual Attempt in the Light of the Treaty of Amsterdam’ (2000) 6 Columbia Journal of European Law 27, 44 Google Scholar.
12 For examples from different phases and perspectives, see Sartori, G The Theory of Democracy Revisited (New York, Chatham House, 1987)Google Scholar; Dahl, R Democracy and its Critics (New Haven, Conn, Yale University Press, 1989)Google Scholar; Habermas, J ‘Three Normative Models of Democracy’ in Habermas, J (ed) The Inclusion of the Other (Cambridge, Polity Press, 1999)Google Scholar.
13 Held, D ‘The Transformation of Political Community: Rethinking Democracy in the Context of Globalization’ in Shapiro, I and Hacker-Corson, C (eds) Democracy’s Edges (Cambridge, Cambridge University Press, 1999)Google Scholar.
14 Craig, P ‘The Nature of the Community’ in Craig, P and de Búrca, G EU Law (Oxford, Oxford University Press, 1998) 1, 30–50Google Scholar outlining and analysing Joseph Weiler’s three-fold categorisation of decision-making modes (international, supranational and infranational) and offering both a critique and an alternative formulation.
15 The most obvious difference is between federal and non-federal states. Other differences relevant for present purposes include parliamentary procedures for scrutiny of the executive in relation to international affairs, in relation to which see Hofman, H ‘Parliamentary Representation in Europe’s System of Multi-Layer Constitutions: A Case Study of Germany’ (2003) 10 Maastricht Journal 1, 39Google Scholar.
16 Beetham, D Defining and Measuring Democracy (London, Sage, 1994)Google Scholar, defining democracy as ‘responsible rule according to related principles of popular control and political equality’, cited in Douglas-Scott, S, above n 7, at 130. Cf Ben Crum, who identifies ‘delegation, conditionality and equality’ as the ‘powerful normative ideas’ on which representative democracy is founded: Crum, B ‘Tailoring Representative Democracy to the European Union: Does the European Constitution reduce the Democratic Deficit?’ (2005) 11 European Law Journal 452, 454–5CrossRefGoogle Scholar. ‘Conditionality’ on this account involves regular competitive elections.
17 Art I–1(1), Constitutional Treaty.
18 Dealing respectively with Common Foreign and Security Policy (CFSP) and Co-operation in Justice and Home Affairs: see generally Denza, E The Intergovernmental Pillars of the European Union (Oxford, Oxford University Press, 2002)CrossRefGoogle Scholar.
19 Regent, S ‘The Open Method of Coordination: A New Supranational Form of Governance?’ (2003) 9 European Law Journal 190 CrossRefGoogle Scholar.
20 Cf the reference to a Europe ‘united in diversity’: European Convention, Draft Treaty Establishing a Constitution for Europe, OJ 2003 C 169/01.
21 Elazar, D Exploring Federalism (Tuscabosa, Ala, University of Alabama Press, 1987) 12 Google Scholar.
22 Ibid at 178–9.
23 Compare the respective entries in Griffiths, A (ed) Handbook of Federal Countries 2005 (Montreal and Kingston, McGill-Queen’s University Press, 2005) 45–57, 106–120Google Scholar.
24 See generally, Tarr, G ‘United States of America’ in Kincaid, J and Tarr, G (eds) Constitutional Origins, Structure, and Change in Federal Countries (Montreal and Kingston, McGill-Queen’s University Press, 2005) 386 Google Scholar (with specific reference to the impact of the civil war).
25 Constitution of the Republic of Iraq, approved at referendum on 15 October 2005. At the time of writing (7 April 2006) the Transitional Administration Law is still in operation, pend ing the accession of a government to office: Art 141. Once the government is formed, there is a four-month period within which amendments to the Constitution may be made without resort to the ordinary amending procedure: Art 142. It is possible that attempts will be made to agree changes to the federal provisions of the Constitution during that time.
26 Henry Sidgwick drew a related conclusion about the significance of such federal arrange ments, that they created ‘divided allegiance’: Sidgwick, H The Elements of Politics (London, Macmillan & Co, 1891) 513–4Google Scholar, cited in Burgess, M Comparative Federalism: Theory and Practice (London, Routledge, 2006) 23–4Google Scholar.
27 Ibid at Ch 1.
28 Canada is an exception, where the second chamber of the national legislature is appoint ed and therefore does not play a significant federal role, even in terms of representation. Germany is an exception of another kind, in the sense that the Bundesrat, strictly speaking, is not a chamber of the legislature at all.
29 In India, eg, a two-thirds majority in the Rajya Sabha is required before new all-India administrative agencies can be created: Indian Constitution, Art 132.
30 In Australia, eg, alterations to provisions of the national Constitution dealing with the proportionate representation of states in either House of the national Parliament require approval at referendum by majorities in the states concerned and thus, effectively, by majori ties in all states: Constitution of the Commonwealth of Australia, s 128.
31 For example Art 14b of the Constitution of Austria (direct consent of the Länder required for laws regulating national procurement in areas of administration assigned to the Länder by the Constitution).
32 Dann, P ‘European Parliament and Executive Federalism: Approaching a Parliament in a Semi-parliamentary Democracy’ (2003) 9 European Law Journal 548, 556CrossRefGoogle Scholar.
33 Austria, Switzerland and South Africa also divide power horizontally, although there are important differences in detail in each case.
34 Saunders, C ‘Comparative Observations’ in LeRoy, K and Saunders, C (eds) Legislative, Executive and Judicial Governance in Federal Countries (Montreal and Kingston, McGill-Queen’s University Press, 2006)Google Scholar.
35 Saunders, C ‘Administrative Law and Relations between Governments: Australia and Europe Compared’ (2000) 28 Federal Law Review 263 Google Scholar.
36 Galligan, B A Federal Republic (Cambridge, Cambridge University Press, 1995)CrossRefGoogle Scholar.
37 Basic Law, Art 50, 51; Oeter, S ‘Federal Republic of Germany’ in LeRoy, K and Saunders, C, above n 34.
38 Burgess, M above n 26, at 177, here interpreting the term as ‘federal comity’.
39 Kincaid, J ‘Concluding Observations’ in Kincaid, J and Tarr, G (eds), above n 24, at 409, 430Google Scholar. The problem is not confined to common law federations, however, as Kincaid makes clear.
40 The latter was an issue considered by the Federalism Reform Commission 2003–4: Gunlicks, A ‘German Federalism and Recent Reform Efforts’ (2005) 10 German Law Journal, available at www.germanlawjournal.com/article.php?id=634 Google Scholar, viewed 22 April 2006.
41 Constitution of the Republic of South Africa, s 60-72; Murray, C and Simeon, R ‘From Paper to Practice: The National Council of Provinces after its First Year’ (1999) 14 South African Public Law 96 Google Scholar.
42 Murray, C ‘South Africa’ in LeRoy, K and Saunders, C (eds), above n 34 Google Scholar. The legislatures of the Länder are represented in the Bundesrat of the Austrian legislature as well: Gamper, A ‘Austria’ in Ibid.
43 See the chapters on Australia, Austria, Canada, Germany, India, South Africa and Switzerland in LeRoy, K and Saunders, C (eds), above n 34. For more precise information about the ministerial council system in one jurisdiction, Australia, see Council of Australian Governments ‘Ministerial Councils’, available at http://www.coag.gov.au/ministerial_councils.htm, viewed 21 April 2006.
44 Poirier, J ‘Intergovernmental Agreements in Canada: At the Crossroads between Law and Politics’ in Meekison, J, Telford, H and Lazar, H (eds) Reconsidering the Institutions of Australian Federalism (Montreal and Kingston, McGill-Queens University Press, 2002) 427 Google Scholar.
45 Saunders, C ‘Intergovernmental Agreements and the Executive Power’ [2005] Public Law Review 294 Google Scholar.
46 Douglas-Scott, S, above n 7, at 114–5.
47 Painter, M Collaborative Federalism (Cambridge, Cambridge University Press, 1998) 103–120 CrossRefGoogle Scholar; see also Department of the Prime Minister and Cabinet Ministerial Councils: A Compendium, available at www.coag.gov.au/compendium/compendium.doc, April 2005, viewed 23 May 2005.
48 Parliament of Western Australia, Standing Committee on Uniform Legislation and Intergovernmental Agreements, 1993–2001, available at www.parliament.wa.gov.au/parliament/commit.nsf/2f132517c052671c48256b1e001d45cf?OpenView viewed 21 April 2006; Parliament of Victoria, Federal-State Relations Committee, established 1996 and now disbanded, available at www.parliament.vic.gov.au/fsrc/default.htm, viewed 21 April 2006.
49 Legislative Council of Western Australia, Uniform Legislation and Statutes Review Committee, (established 2005), available at www.parliament.wa.gov.au/parliament/commit.nsf/2f132517c052671c48256b1e001d45cf?OpenView, viewed 21 April 2006.
50 Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia Scrutiny of National Schemes of Legislation: Position Paper (Canberra, Parliament of Australia, 1996)Google Scholar.
51 Saunders, C ‘Administrative Law and Relations between Governments: Australia and Europe Compared’ (2000) 28 Federal Law Review 263 Google Scholar.
52 Senate Standing Committee on Constitutional and Legal Affairs The Role of Parliament and the National Companies Scheme (Canberra, Australian Government Publishing Service, 1986)Google Scholar.
53 Hueglin, T ‘Canada’ in LeRoy, K and Saunders, C (eds), above n 34 Google Scholar.
54 Mutual Recognition Act 1992 (Cth); Agreement Relating to Mutual Recognition, avail able at www.coag.gov.au/mra/mra_text.pdf, 1992, viewed 21 April 2006.
55 The Leaders’ Forum: Wilkins, R and Saunders, C ‘Intergovernmental Relations in Australia’ in Forum of Federations Intergovernmental Relations in Federal Countries, avail able at www.forumfed.org/federal/llviewpapers.asp#, viewed 21 April 2006.
56 Council of the Federation: Smith, J Federalism (Vancouver, University of British Columbia Press, 2004) 156–7Google Scholar.
57 Conference of the Cantonal Executives: Linder, W and Steffen, I ‘Switzerland’ in LeRoy, K and Saunders, C (eds), above n 34 Google Scholar.
58 Craig, P above n 14, at 26–27, noting that in the circumstances of the contemporary world, if the EU did not exist, arrangements of some other kind between the countries of Europe necessarily would emerge.
59 Douglas-Scott, S, above n 7, at 156.
60 And would have largely survived in the constitutional treaty for this reason: Norman, P The Accidental Constitution 2nd edn (Brussels, Eurocomment, 2005) 46 Google Scholar.
61 Ibid at 176.
62 Art 1–11(3).
63 Art 1–5(2). See also (1), in which the Union recognises the equality of the Member States; undertakes to ‘respect their essential State functions’ and guarantees to ensure their territorial integrity.
64 Denza, E, above n 18.
65 Norman, P, above n 60, at 9.
66 Douglas-Scott, S, above n 7, at 81.
67 But see Dann, P, above n 32, arguing that the unusual conditions of the European institutional structure make the European Parliament a ‘special case of a working parliament’ in a ‘semi-parliamentary democracy’ and thus more effective than many national parliaments in the areas of responsibility assigned to it.
68 Burgess, M, above n 26, at 228–32, outlining the strategy of Jean Monnet for building Europe, and contrasting it with the proposals for deliberate political development of Altiero Spinelli.
69 Commission, ‘European Governance—A White Paper’, OJ 2001 C 287/08.
70 Europarl Service, ‘Turnout Trends at European Elections’, available at www.elections2004.eu.int/ep-election/sites/en/results1306/turnout_ep/graphical.html. The 2004 results are the lowest in a progressively declining turnout since the first European elections in 1979, with a turnout of 63%.
71 European Convention, ‘The Role of National Parliaments in the European Architecture’, CONV 67/02, 6. States in the first category included Germany, Denmark and Finland and, with some qualifications, the Netherlands and Austria. Those in the latter category were Belgium, Spain, France, Luxembourg and the United Kingdom.
72 Cf the description of the Council of Ministers as ‘Janus-like’ in Case T–14/98, Hautala v Council [1999] ECR II–2489, quoted in Douglas-Scott, S, above n 7, at 92.
73 Art I–1(1), European Convention, Draft Treaty Establishing a Constitution for Europe, OJ 2003 C 169/01; Norman, P, above n 60, at 8, 9.
74 Art I–6, constitutional treaty; Norman, P, above n 60, at 316.
75 Art I–45, 46 and 47.
76 Art I–47(4).
77 Art I–34; in accordance with the procedure in Art III–396, describing the respective roles of the Parliament and the Council in relation to legislation. See also Norman, P, above n 60, at 397.
78 Art I–20, III–404; the latter would have authorised the Parliament to adopt amendments to the budget submitted by the Commission and approved with a qualified majority by the Council. Disagreements between the Council and the Parliament would have been referred to a Conciliation Committee.
79 Art I–36.
80 Art III–273, 276.
81 Art I–21, 23 and 26, respectively.
82 Art I–22 The President would have been precluded from holding national office during his or her term: Art I–22(3).
83 Art I–22(2)(d).
84 Art I–26(8).
85 Art I–27, III–340. These procedures gave some weight to the preferences of the Parliament and thus to the will of the voters. They departed from familiar democratic practice in a vari ety of ways, however: in particular, the Council had the initiative; and a censure motion required special majorities. An additional requirement for members of the Commission to, in effect, represent the Member States in accordance with an agreed system of rotation is broad ly consistent with the practice of some federations: Saunders, C ‘Concluding Observations’ in LeRoy, K and Saunders, C (eds), above n 34 Google Scholar.
86 Art III–337(2).
87 Art III–333.
88 Further extensions also would have been possible pursuant to procedures put in place by the Treaty: Art I–18, IV–444.
89 The Treaty would have extended the number of legislative areas for co-decision from 37 to 86: Norman, P, above n 60, at 320.
90 According to Norman, the Treaty would have created 26 new legal bases on which decisions would have been made by qualified majorities in the Council and moved another 17 from unanimity to qualified majority voting, leaving ‘about 70 areas’ subject to the unanimity requirement: Norman, P, above n 60, at 319.
91 The limited sanctions available to the Parliament for use against the Commission or individual commissioners are another, despite the improvements that the Treaty would have made in this regard.
92 Art I–50(3), Constitutional Treaty.
93 Art I–22(2)(d), in relation to the report by the President of the European Council; Art III–352, in relation to the report on the activities of the Union by the Commission.
94 Lenaerts, K and Desomer, M ‘Towards a Hierarchy of Legal Acts in the European Union? Simplification of Legal Instruments and Procedures’ (2005) 11 European Law Journal 744 CrossRefGoogle Scholar.
95 Douglas-Scott, S, above n 7, at 116.
96 Art I–24(6), Constitutional Treaty.
97 See the preamble to the Protocol on the Role of National Parliaments in the European Union, available at www.eurotreaties.com/amsterdamtext.html: ‘Recalling that the way in which national Parliaments scrutinise their governments in relation to the activities of the Union is a matter for the particular constitutional organisation and practice of each Member State’.
98 Art I–11(3) and Protocol II Art 4 of the Constitutional Treaty requires, eg, draft European laws to be forwarded by the Commission to national Parliaments at the same time as to the ‘Union legislator’.
99 Art I–42(2).
100 See, eg, concern in Germany about the authority of the German government to propose German candidates for European judicial positions: ‘[t]his leads to the anomaly that, under the federal constitution, the Bundestag and the Bundesrat have the right to nominate the Judges of the German constitutional court but not the Judges at European courts’: Hofman, H, above n 15, at 52.
101 For example, the access to documentation in Art I–50(3).