Is big change coming to the EU?

Is big change coming to the EU?

I have been following the EU’s Conference on the Future of Europe, particularly its democracy chapter which has helped shape some thoughts. I was interested to note that the US’ route to a federal republic seemed to be a harbinger for the EU’s journey. I wrote, Subsidiarity, representation and human rights, which frankly got blown of course and became a review of Prof. Mark Stoler’s lecture on the US constitution. I had drawn inspiration from the original US restriction on direct taxation and the 10th amendment which defines the powers of the federal government and those of the States, although the 10th amendment also purports to constrain the States power by defining a right of subsidiarity to the people.

This article looks at the flawed route taken by the US Constitution and forsees with hope the EU’s -and the UK’s] adoption of new rules and rights.

When I say it was blown of course, it was hoped to be a polemic for ensuring that the principle of subsidiarity ensured that the EU’s member states implemented a democracy where decisions were taken as close to the citizen and their communities as feasibly possible. The EU Treaties only promise subsidiarity between the Union and the member states, a bit like the 10th amendment and in contradiction to Article VI of the US Constitution, also known as the Federal Supremacy clause.

The EU has its democratic problems, and one of them is that theories of good political governance are dominated, at the least in the Anglosphere, by the US Constitution, even with its obvious flaws, it original racism, and its failure to consider economic justice as a constitutial right. These problems are still extant in both the US, most countries that have adopted similar constitutions but also in Europe.

I was taught and came to believe that the US separation of powers between the legislature, the executive, and the judiciary was an important means of constraining power in government. This insight has recently been reinforced by observing the behaviour of the Johnson government in the UK, where the legislature would not exercise its control, and the executive sought to undermine the judiciary. But is the value of the separation of powers true?

The US Constitution is not neutral and those that seek inspiration from it need to be careful.

Recently, the Jacobin magazine published an article, called, The Constitution Is a Plutocratic Document, in which its author Robert Ovetz, argues that the taxation and public debt management functions of the proposed federal government were designed to transfer private & State debt to the Federal Govt, who then issued bonds. The private debts had often been factored and the attempts to obtain payment had caused riots, and it was becoming difficult to collect both interest and the principal. State debts had often been defaulted. The new Federal Government replaced these private debts with treasury bonds and the repayment and interest was underwritten by the tax payments of all citizens, or at least all tax payers. At this time direct taxation was prohibited to the Federal Govt.

Stohler in his lecture mentions the need to reform debt laws, Ovetz puts this into a class perspective arguing that the new federal public funding/bond issuing programme transferred the risk of private debt default to the federal state.

These measures were in addition to the constitution’s author’s fear of democracy and thus the withholding of power from the people, with indirect election to the senate and the presidency, the racist and property based qualification to vote, the gridlocked legislative process, and the complex super majority required to change the constitution. Ovetz also argues that Article VI, the federal powers article, also known as the federal supremacy clause, was designed to ensure a brake on regional radicalism. This is reinforced by the Senate where each state has two votes irrespective of its population, together with the ubiquitous use of first past the post elections, which allows minorities to win power. Furthermore, with large electorates the electoral system jeopardise the ability to win a loser’s consent. The legislative gridlock inherent in the US Constitution also makes progressive reform hard. Ovetz’s penultimate statement in the article is,

The Constitution was designed with all these pitfalls and roadblocks that make it very difficult to get the changes we need unless we give the economic elites what they want so they no longer block it. This is how the economic minority is empowered by the Constitution to impede political democracy and prevent economic democracy.

When checking the Jacobin for this piece, I also found, “Toward a Marxist Interpretation of the US Constitution” by Bertell Ollman, also in the Jacobin. This is shorter and less detailed, but makes the point that the limited view of rights, and the ideology of the wisdom of the “founding fathers” makes the constitution a brake on progressive reform.

… an important part of the Constitution’s work is ideological. As ideology, the Constitution provides us with a kind of bourgeois fairy tale in which claims to equal rights and responsibilities are substituted for the harsh realities of class domination. Through the Constitution, the struggle over the legitimacy of any social act or relationship is removed from the plane of morality to that of law. Justice is no longer what is fair but what is legal, and politics itself is transformed into the technical wrangling of lawyers and judges.

This last line, reminds me of the theories of Dr Fritz Scharpf, the abstract to his paper says,

Judge-made law has played a crucial role in the process of European integration. In the vertical dimension, it has greatly reduced the range of autonomous policy choices in the member states, and it has helped to expand the reach of European competences. At the same time, however, ‘integration through law’ does have a liberalizing and deregulatory impact on the socio-economic regimes of European Union member states. This effect is generally compatible with the status quo in liberal market economies, but it tends to undermine the institutions and policy legacies of Continental and Scandinavian social market economies. Given the high consensus requirements of European legislation, this structural asymmetry cannot be corrected through political action at the European level.

The crucial part of this abstract may be the last sentence; progressives need a flexible and accountable government that can act in a timely fashion. Linz in the “Paradox of Presidencies” criticises the US Constitution; its immutable terms of office makes it unable, unlike a parliament to allow the electorate to force a change of direction on an administration through recall. This is shown in both the USA and UK recently by the cowardice of legislators fearing retaliation from their parties and loss of their position, even for doing the right thing.

How do you defend democracy against the corruption of its political parties?

To return to my start point I can see that the EU has problems because of the Council, the veto, and the Commission’s exclusive right of legislative initiative together with a problem with subsidiarity especially on the decisions of intra-state secession and the current treaties act as a brake on devolution within the member states. At least it doesn’t have a directly elected presidency, and despite leading European Parliamentarian’s ambitions to the contrary, this is unlikely to occur soon. It does have a Charter of Fundamental Rights, which guarantees many of the social rights missing from previous attempts to write a constitution including, the right to education, fair conditions at work, access to benefits, and healthcare.

It’s useful to be reminded that the rule of law is not always neutral.

While many of the undemocratic features of the US Constitution are replicated, some would say inspired by the UK, I have some hope that an incoming Labour Government will make some positive change, informed by the Brown Commission. Political subsidiarity, which it proposes is not enough, to back it up it is necessary to have a transfer union, and/or a solidarity contract! Having discovered that the US with its separation of powers is insufficient, I ask can we learn from the Swiss or do we need to look further afield. I am certain that Labour’s plans for further English devolution are not enough as they seem unwilling to back it with equitable funding and their target entities for devolved powers while, better than not having any, are too large for the advantages of genuine social solidarity to express itself.   …

Ruling through fear

Have they cowed the Judges? The Economist has just issued its Democracy Index and I have had another go at scoring the UK. It asks questions about redress and petition which took me to Judicial Review which clearly by observation is failing and more dramatically but less visibly away from the corridors of power. In this review, I stated that Judges are appointed by, promoted by and paid by Governments. These views or at least those that question the committent of the courts to the rule of law, it seems are shared by Jo Maughn who makes his point in a tweet thread, which I have gathered into one place using threadreaderapp and copied here using a rather neat wordpress tool. Please use the 'read more' button to see his powerful and frightening words ... ...

Impunity and contempt in Government.

Impunity and contempt in Government.

Is it worse under Johnson? The short answer would seem to be “Yes”. None of the controls on Governments are law, they are all based on conventions and Parliamentary Sovereignty means that they are not permanent. (The recent habit of previously prohibited retrospective legislation and emergency parliamentary/legislative schedules also strengthens a Govt. and thus a Prime Minister’s hand.) But, it’s the shamelessness of Johnson and his Government which is the danger to democracy.

Respect for Parliament and politicians had been damaged by the expenses’ crisis but the Brexit referendum and its aftermath further damaged Parliament’s political legitimacy often at the hands of MPs who showed extreme cowardice in the face of the tumbrils pulled by UKIP’s donkeys.

The British people were fortunate that the decision to order the longest prorogue in modern times was able to be overturned by the courts even though the government argued that they didn’t have the power. Parliament also ripped up a further control when the SNP1 voted in 2019, to agree an election for reasons of sectarian advantage and fatally undermined the fixed term parliament act.

Since the election, there have been number of breaches of the ministerial code, involving money, influence or vote buying. This article from Yorkshire Bylines, dated March 20, details breaches by 11 cabinet members. There have also been an egregious corruption of the procurement process where they are now being pursued by the good law project, with the crowning glory the pursuit of the £37bn spent on a track and trace system that has never worked. The ‘levelling up’ initiative, once called Regional Policy is also the subject of both controversy and legal review being characterised as pork barrel politics.

 The current troubles aka partygate were started by Johnson and the Tory Whips’ attempts to rewrite what limited controls remained to save Owen Paterson, once the MP for Shropshire North from sanction for lobbying. The list of breaches is so long that Transparency International are calling for the Ministerial Code to be made law. This government has also has a series of breaches by most publicly Cummings and Hancock, of covid safety regulations culminating in today’s heavily redacted Grey Report, cataloguing 20 inappropriate events while the public could not visit relatives in care.

This impunity is reflected in policy making by Priti Patel as Home Secretary, not only did May kick her out for off-piste foreign policy and breaches of the ministerial code, she was taken to tribunals for bullying and the Home Office is being sued by its own watchdog for breaching the withdrawal agreement as it applied to EU citizens in the UK. This impunity was also shown in the trade negotiations led by Lord Frost with the threats to break the agreement in contradiction to international law and the threats to void the Northern Ireland Protocol.

There is a culture of impunity running through this government, underpinned by Parliamentary Sovereignty, a fake definition of national sovereignty and a party majority in the Commons reinforced by what would seem an unwillingness of the police or other regulators to investigate crimes committed by govt. ministers.

We have no basic law nor it would seem today a police force willing to pursue wrong doing in Whitehall.


This was originally written as part of a longer article, but I have decided it doesn’t fit in that article and so here we are.

[1] The SNP gave Johnson a 50% majority in the House, and were quickly followed by the LibDems and then Labour split with many of them voting for the election. There is an alternative view that the FTPA transferred the power to call an election from the PM to parliament and parliament just decided not to go through the vote of confidence, the requirement for a supermajority and a waiting period. …

Compliance in Government

Compliance in Government

It’s hard to understand what’s happening inside Johnson’s Cabinet, but there has been much, mainly adverse comment on the appointment of Suella Braverman as Attorney General. The AG is the Government’s Lawyer and there have been great lawyers performing this role, in fact often, Government’s have made their chosen candidates members of the House of Lords so that they can get the talent they need without having to filter it through the choices of their local associations/CLPs. You can find comments about the suitability of Ms Braverman elsewhere, but many commentators are worried about the resuscitation of the Tory demand to leave the ECHR and the Home Office’s continued breaking of the law.

Human Rights law is written to protect people from the power of the state!

Another thing that worries me is that I have observed in business, the growing organisational dichotomy between legal departments and compliance. The former tells a company what it can do, and the latter what it can’t and grasses the company up if it believes itself to be in breach of the law. It’s important that Government, particularly the Home Office and DWP get good and safe advice from their legal team, especially if they plan to weaken access to judicial review.

Image Credit: from flickr, CC Marco Vetch 2018 BY …

Mass Action or Court Action

I have today posted a limited review of Orgcon17 which happened last year. One of the most provocative presentations was this one, “Is the law the best way to stop mass surveillance?” While it documents the heroic struggle by a small group of fiercely motivated lawyers, it’s incredibly slow at the time, the court cases considered in 2017 related to 2015 laws and by the time the rulings came through the law in question had been replaced, but while pursuing legal action, mass action is hard, although and other petition sites allow the building of an on-line communities.

The presentation made me think about the numerous, trade union legal actions on collective bargaining issues, most notably their pursuit and criminalisation of Uber. In these cases, the use of the law is a sign of weakness, albeit of both sides, but demos and voting aren’t enough to change politicians minds on issues they consider peripheral. …

Citizens not Suspects

Citizens not Suspects

The Guardian reports that Privacy International are going to court to get the UK Government banned from using the USA’s ‘intelligence’ obtained via their Prism programme, and to suspend the UK’s equivalent programme, the GCHQ’s Tempora programme.

Privacy International argue that the UK agencies’ use of NSA supplied data is illegal since there is no warrant and no notification and no appeal; which is a problem when there is no ‘probable cause’. In order for GCHQ to intercept someone, they’d need a warrant issued under RIPA. This looks to be  an example of the two agencies outsourcing the surveillance of their own citizenry, since they are prohibited from doing so. i.e. GCHQ is spying on Yanks, and the NSA returns the favour by spying on Brits. Both agencies need a warrant to spy on their own citizens, but not on foreigners. …

Save Lewisham A&E – Hunt’s broken the Law

Save Lewisham A&E – Hunt’s broken the Law

Hunt’s closure of Lewisham A&E ruled illegal by the High Court, and here’s how various supporters of the campaign reacted.

Mark, the artist taxi driver seems to like swearing, a lot! What he seems to like swearing about and at is the Tories! This isn’t a problem for me, in fact I find him funny, but some may find his language offensive. Of course, what he’s talking about is pretty offensive. …

What should Lewisham Labour do next?

What should Lewisham Labour do next?

Some thoughts from New Cross Labour,

Lewisham’s Labour Group have launched an internet consultation, at Lewisham Together , a wordpress site,, anyone can contribute ideas to Labour’s Manifesto for Lewisham’s Mayor and Labour Group.  The Labour Party has been choosing candidates over the last six months and campaigning on the doorstep since they won back control of the council in 2010. As part of the consultation, Mayor Steve Bullock came to New Cross Labour Party to talk about the next administration. Members of neighbouring Brockley Ward were also invited, which is how I got there. …

Judicial Review of the Digital Economy Act

BT & Talk Talk, the two largest UK internet Service Providers (ISP) went to court towards the end of 2010 and the beginning of 2011 to obtain a judicial review of the Digital Economy Act, a law passed in the dying days of the last Labour Government. This law is designed to place duties on internet service providers to act on the instruction and on behalf of copyright holders and to authorise Web site blocking. On the 20th April, Mr. Justice Parker delivered his judgement.

This article is a personal summary of that ruling. The judgement is awfully hard to read and understand. I have an economics degree and nine years of Civil Service training! Actual quotes should be obvious, other representations are in my words, not those of the judgement. In some places I have got lost in the text of the judgement and while my summary is much shorter than the original, it remains pretty long. The impatient or easily satisfied can skip straight to the summary. …