The sudden and unforeseen strengthening of the pro-Brexit campaign has made a possible UK exit from the EU the most important political debate in Europe after the migrant crisis. This debate usually revolves around the possible future repercussions of a Brexit on the EU and Britain, but it is instructive to consider to what extent a British exit from the EU could be considered evidence of a reassertion of attitudes deeply rooted in British political culture.
There are two main areas to consider in this regard:
1) Britain's internal constitutional arrangements prior to joining the EEC in 1973
2) The British ruling elite´s approach to foreign policy pre 1973
Britain's accession to the then European Economic Community took place in 1973, (the fact that the European Union has only existed since it was created by the Maastricht Treaty of 1991 is generally overlooked.) The full significance of this event can however only be understood against the background of the massive change in Britain's internal and external political situation that took place between 1911 and 1951.
Part 1 - Britain's Constitutional Foundation
The fundamental principle of British politics since the Civil War 1641 – 1646 has been the repudiation of absolutism and the doctrine of the absolute supremacy of the elected parliament. It is important to remember that absolutist rule is not equivalent to rule by dictator, the absolute monarch was not unrestricted in his sphere of action, nor did he have a political organization willing to abuse human rights at his arbitrary request. On the contrary the monarch was bound by the religious commandments and social obligations of Christian feudal society. Absolutism meant rule by decree, it meant that the sovereign could decree what is law without discussing it with a parliament and that parliament had no right to veto or amend legislation.
Parliament won the civil war and when the monarchy was restored following the death of Cromwell it was done on parliament´s terms. Following James the Second´s flight from the throne, the English political establishment offered the Crown to William of Orange and began the long process of depriving the Crown of its privileges, such as its right to name or veto ministers, introduce or veto legislation, or to remove judges,. This process which was completed in 1911 with the Parliament Act which deprived the hereditary House of Lords of the right to veto legislation, thus establishing the elected House of Commons as the ultimate political authority in the land, restricted only by the common law rights of Her Majesty´s subjects as understood and upheld by an independent judiciary.
As a result of this constitutional development, Britain developed a quite different attitude to the matter of formulating and implementing law than was the case in continental Europe. This particularly British approach to the Rule of Law was best defined by the Britain´s most influential constitutional scholar A.V. Dicey in 1885. According to Dicey the Rule of Law requires
(i) The absolute supremacy of ‘parliamentary´ law as opposed to arbitrary power and the absence of discretionary authority on the part of government. Parliament must retain the power to amend the legislation as needed and to call the Minister responsible for implementing the legislation to account. The Minister is also to be held personally responsible for the actions of his civil servants (burocrats).
ii) Secondly disputes between government and citizen are settled in the ordinary courts according to the ordinary law rather than in special state-run administrative courts. Dicey thought that special administrative courts would give the government special privileges and make it more difficult to call politicians and bureaucrats to account for their actions.
iii) Dicey was opposed to conferring discretionary decision making powers or the ability to make law on executive bureaucrats. This he believed opened the door to arbitrariness and would make it impossible to ensure that powers are exercised in good faith, without bias and on the basis of stated criteria, which practice being essential to maintaining the rule of law.
This British approach to the rule of law conflicts directly with the continental tradition of an “etat legal”, or “Rechtsstaat”, in which executive officials and government departments are expected to issue legally binding decrees creating subordinate legislation. Such decisions can only be challenged in special administrative courts, whose jurisdiction only extends to examining whether the executive action is compatible with the law conferring subordinate legislative powers upon the administrative department in question. In other words the executive defines itself the criteria by which executive action is to be reviewed judicially. This arrangement has three negative consequences from a British or common law perspective:
1) The practice of issuing “Weisungen” or directives, that is to say the practice by which an elected politician or senior administrator may issue a directive to a lower ranking bureaucrat compelling him to use executive power to benefit or disadvantage particular individuals, even if this requires the bureaucrat to contravene publicly stated criteria to reach such a decision,
2) The fact such directives may not be questioned or overturned by the administrative courts. Article 9 of the German law regulating judicial review of administrative action (VwVfG ) expressly states that only external actions taken by the authorities can be examined by the administrative courts. Actions taken within the bureaucracy, including Weisungen, are beyond the right of the court to examine.
3) The fact that the authorities are often exempted by legislation from an obligation to declare what criteria were used to come to particular decisions.
This manner of exercising administrative power opens the door to “cronyism” or nepotism, whereby access to public resources may be dependent on an individual´s personal relationship to politicians or senior civil servants and those citizens who do not have such contacts are institutionally disadvantaged.
All three aspects of this approach to public administration contradict British common law notions of procedural fairness. A practical example may serve to illustrate this problem.
Let us imagine that the allocation of school places is officially determined by the distance a child lives from a particular school. Let us further imagine a situation in which this rule is not correctly applied, because a politician or bureaucrat empowered to exercise the final decision on the allocation of school places has issued a “Weisung”. By doing so he orders the local education authority to give a particular child, who on a strict application of the criteria should not be eligible, a school place at the expense of a child that lives nearer. A parent, whose child as a result of such practices has been “wrongly” denied a place might seek an explanation from the local authority, only to be informed that the education authority is not obliged to and will not explain its decision. The parent´s attempts to have the decision overturned in court will fail, if the relevant legislation permits politicians to allocate places by decree and frees the local authority from an obligation to explain the reasoning behind its decisions.
In Britain such a practice would be illegal. There is an good discussion of this British attitude to the exercise of executive power in the book “The Rule of Law” written by Thomas Bingham who was Lord Chief Justice of England and Wales until 2008. According to Lord Bingham in the absence of an effective legal means to challenge the education authority's decision, such an system would violate the rule of law.
There are two fundamental differences between the British and the continental approach to judicial review (Verwaltungsgerichtbarkeit)
In the first place Britain has no special administrative courts, only ordinary courts in which British citizens may call British civil servants and politicians to account for the manner in which they exercise power.
Secondly as a result of the common law tradition British courts have the general power to ensure that decisions taken by the state administration comply with fundamental principles of procedural fairness and natural law. This does not mean that the courts can take decisions in the place of politician and civil servants. The judges are not experts in the field and are not empowered by Parliament to do so. The role of the court can however quash the existing decision and order the relevant department to make another lawful decision.
Judges have continued to uphold the British attitude to judicial review even after Britain's accession to the EU. Two quotations may serve to illustrate this:
In Regina v Home Office (1997) Lord Steyn gave the opinion that
“the Rule of Law enforces minimum standards of fairness, both substantive and procedural”
“the Rule of Law besteht auf Mindestnormen der Fairness, sowohl materiell als auch verfahrensrechtlich ”
Regina v Sec of State for the Environment (1991) the judge held that it is
“the necessary assumption that the court must supplement the procedural requirements which the Act stipulates by implying additional requirements said to be necessary to ensure that the principles of natural justice are observed..... The decided cases on this subject establish the principle that the courts will readily imply terms where necessary to ensure fairness of procedure for the protection of parties who may suffer a detriment in consequence of administrative action.”
Es ist “die notwendige Annahme, dass das Gericht die Verfahrensvoraussetzungen, die das Gesetz festsetzt, durch zusätzliche Voraussetzungen ergänzen muss, um sicherzustellen, dass die Grundsätze der Naturrechts berücksichtigt werden..... Die Präzedenzfälle zu diesem Thema haben den Grundsatz etabliert, dass die Gerichte, wo notwendig, zum Schutz von Parteien, die ansonsten einen Nachteil durch eine Verwaltungshandlung ertragen könnten, bereitwillig Bedingungen (in den Gesetzestext) hineininterpretieren werden, um Verfahrensgerechtigkeit sicherzustellen.”
According to Lord Bingham the rules of natural justice have traditionally been held to demand that
1) A power must be exercised in a manner that is fair, in good faith, for the purpose the powers were conferred, and without exceeding the limits of those powers .
2) The mind of the decision maker should not be tainted by bias
3) Decisions should be made in the basis of stated criteria and that they should be amenable to legal challenge,
A British parent whose child was denied a school place in contravention of publicly stated criteria could therefore be optimistic about challenging the legality of such a decision in British court.
The ability of European citizens to ensure that their state administrations and political elites exercise power in such a way as to ensure that all citizens are treated equally by the state and without regard to their social, political or economic standing, is in contrast much more limited.
The continental European method of ruling by executive decree may be considered a relic of absolutism and runs directly against the British tradition of democratic accountability and judicial review of executive action based on fundamental principles of natural law or procedural fairness.
The ramifications of this practice on the EU level were discussed in a previous article dealing with the influence of EU law on representative democracy (siehe Artikelarchiv Der Anwendungsvorrang des EU Rechts und die Aushöhlung der repräsentativen Demokratie), Institutions of the EU such as the European Commission or COREPER ( the Committee of Permanent Representatives which prepares and formulates EU law on behalf of the Council of Ministers) are executive bureaucracies whose activities are under the controll of any parliament.
Although in the 20th century as a result of the expansion of government activity in the UK and the accompanying need for a civil service capable of administrating the expanding welfare state, Dicey´s doctrines could no longer be applied as strictly as they were in the 19th century, Dicey´s conception of the necessity for parliamentary accountability of law makers and udicial review of executive action remain dominant in British political culture. The law-making activities of EU bureaucrats are therefore instinctively viewed with scepticism in Britain whereas continental Europeans regard them as nothing more than a logical extension to the European level of the normal range of activities performed by bureaucrats at the national level. A final and irrevocable integration of the UK into a unified European State would require the practice of judicial review based on common law principles and parliamentary accountability of lawmakers to be jettisoned in favour of the continental administrative law tradition. Such a development would finally demolish the doctrine of the absolute supremacy of the British Parliament. The British people´s adherence to the idea that there can be no higher political authority than the House of Commons and their belief that politicians and bureaucrats must be governed by the rule of law are both powerful intellectual arguments against EU membership and ideas hat have very deep roots in British political culture.