Jackdaw

THE JACKDAW AND THE CROW

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I am privileged to give this lecture not only because of the distinction of my predecessors at the lectern and the lustre of the Centre of European Law, though these are undoubted, but also because this year falls the 175th anniversary of the foundation of King’s College London, inaugurated by the Duke of Wellington as a sturdy riposte to that “godless institution in Gower Street”. Having a wife who taught theology at KCL, and having the honour to be a Judicial Visitor at UCL, I conceive that my spiritual and intellectual home must be about half way up Southampton Row; but wherever it ought to be located, my pleasure at this invitation is entirely undiluted.

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The proposed Treaty establishing a Constitution for Europe is the subject of much political controversy.

Controversy as to its merits; controversy also as to the

government’s recent announcement of an intention to hold a referendum upon the issue, as I assume, whether the United Kingdom should ratify the Treaty. As a serving judge it would be wrong for me to enter into any general discussion of these matters. However the political debate is to a considerable degree being conducted, and perhaps (as it gets hotter) will increasingly be conducted, by reference to two concepts which belong to the overlapping realms of law and political philosophy, and I think I may say something about those. They are the concept of the State and the concept of a constitution. Though they are common currency, the meaning of these ideas is not self-evident, and I do not think they are always well understood. Yet I have seen no substantial discussion about what they mean. I suspect that issues of constitutional theory, some of them quite intricate, are not a diet consumed with gusto by the popular media. I intend no gibe against the tabloids; I have not seen nor heard of any such discussion in the other newspapers, the broadcasting media, or indeed Parliament itself. If it has happened but I have missed it, I apologise to those concerned. In any case the vigour of political debate

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is often breathless, and inclined to concentrate on the pit, where the blood is to be spilt, rather than the sideshows. But here the sideshow is not really a sideshow at all. The debate is about whether the draft constitution is a good thing. The question cannot coherently be discussed without an agreed understanding of what a constitution is; or at least, without a prior debate along clear lines about what a constitution is; and I will offer some reflections about that. 3

In doing so I must also consider what is the meaning of a State. Ascertaining the meaning of a State is a necessary condition for ascertaining what is meant by a constitution. That is because the central instance of a constitution is the constitution of a State; the State is ordinarily the constitution’s subject-matter. There may certainly be other kinds of constitution, or constitutions of other things, such as private clubs and societies, academic institutions, trade unions and charitable organisations.

But the

constitution of a State is the paradigm case. It is for consideration whether the European Union is an entity of a kind such that its claim to possess a constitution would be an intelligible claim, upon the premise that the term “constitution” here possesses its ordinary sense; or whether the claim only has meaning if some different sense is attributed to “constitution”. 4

Further, the nature and meaning of a treaty, that is a treaty between States, must also be considered. We are confronted with a draft treaty said to establish a constitution for Europe. In looking at the question, what is meant by the establishment of a constitution by means of a treaty, we need to be clear about “treaty” just as surely as we need to be clear about “constitution”.

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So we have constitution, State, and treaty. There is another theme involved in all of these. It is that of sovereignty. Sovereignty is the possession of States, by whose constitutions it is expressed and by whose treaty-making powers it is exercised. Its meaning however is perhaps more elusive, or at least more controversial, than any of the

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other conceptions I am concerned with. Like a stinging nettle, it has sensitive edges. Constitution, State, and treaty look like ideas whose nature and whose reach may be debatable, but the debate seems to belong more in the seminar room than the political chamber. I am not sure that that is truly so; but I think it is clear that the debate about the nature of sovereignty is a good deal hotter. It belongs more obviously to the pit than the sideshow. It is for that reason especially prudent to keep in mind an elementary philosophical truth which, however, possesses considerable practical importance. It is that the question, What is?, when asked about an abstract concept such as a constitution or sovereignty, presents a linguistic trap. The question looks like an unloaded question of fact, no different from What is that? when the questioner points to an animal or a plant or another thing that he has not seen before. But because you cannot see a constitution, or a State, or sovereignty, the question What is it? must be understood differently. It is first an enquiry as to how the term is used in the language. What do we mean by sovereignty? This is a linguistic and historic form of enquiry. But the question may also entail a further enquiry: What should we mean by sovereignty? This is a normative exercise, whose outcome will depend upon matters of political and in the broadest sense ethical judgment and opinion. The trap is to confuse these two forms of enquiry – What do we mean? What should we mean? – one with the other. 6

The scheme of this lecture is as follows. I will start with what is meant by the State. Then I will discuss sovereignty.

After that, the nature of treaties; and after that,

constitutions. Only then, towards the end, will I have something to say about the draft Treaty we are considering. For this I make no apology: the meaning of these various concepts is logically prior to any sensible discussion of the draft Treaty whose merits or demerits are, as I have said, necessarily outside my remit. As for the lecture’s title, the literary reference will not have escaped this audience. I will gather it in at the end.

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I turn then to the State. The concept of the State is described by Anthony Aust, formerly a legal counsellor at the Foreign and Commonwealth Office, in his excellent recent textbook on the law of treaties, as follows1: “By ‘state’ is meant a sovereign independent state. This requires territory with a settled population, a sovereign government and independence from any other state.” This, however, does not catch the whole sense of the term “State”. In particular it does not catch (though perhaps, in fairness, it suggests) a critical truth, namely that “State” has to be distinguished from “government”. This is of the first importance for any understanding of what is meant by the State. In a free society the citizen as citizen owes no duty whatsoever to the government.

But he certainly owes, or should owe,

substantial duties to the State: these are the duties of the good citizen. The existence and acceptance of such duties is a mark of the State’s health as the exemplar of community. In this the State represents the whole body of its citizens, whose duty to each other finds concrete reality in their duty to the State. Here, the separation between State and government is crucial. 8

It is very difficult to exaggerate the importance of this separation. The government – any government – has a political agenda with which, inevitably, only some of the citizens will agree. The government will be of a particular political colour, which to some of the citizens will be anathema. More deeply the government must be smaller than the State, because the government must be subject to the law, whereas the State is the source of the law. The conception of the citizen’s duty to government, as opposed to his duty to the State, is a slavish conception. The idea of a duty to government is the idea of obeisance to a political creed, or a set of political masters, enforced by law. On this, governmental, model of the State the relation between State and citizen is the relation between master and servant. The conflation of State and government into a single entity would potentially legitimise the apparatus of totalitarianism. In totalitarian

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Aust, Modern Treaty Law and Practice, Cambridge University Press 2000, ch. 4 p.47.

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States the State and the government are one. The political creed, the political masters, are all there is. And on the governmental model of the State, the State or government will likely come to despise the citizens. Here is Machiavelli2: “… a prudent ruler cannot, and should not, honour his word when it places him at a disadvantage and when the reasons for which he made his promise no longer exist. If all men were good, this precept would not be good; but because men are wretched creatures who would not keep their word to you, you need not keep your word to them.” If you buy totalitarian government, this is unanswerable. 9

Now contrast the distinct idea of a duty to the State, as opposed to the government. Such an idea is quite different from the governmental model. It is a concrete form of the idea of community. It involves no condition of master and servant. It does not rest, as the governmental model rests, in one political creed or in any given set of political masters. It is a community occupying a particular territory. It is coherent by virtue of what its members share. What they share may generally be expressed in terms of culture and tradition, but these terms are obviously elastic: the culture in question may well be one of openness and tolerance and an aptitude for change; and in a State of any antiquity it is obvious that its cultures and its traditions will have been formed, certainly informed, by its history. Upon this model, the citizen’s duty to the State is an aspect, the public aspect, of his duty to his fellow-citizen. There is nothing slavish about it. Ideally, the citizen is a participant in the State, not its servant. Here is Pericles’ funeral speech for the Athenian dead early in the Peloponnesian War, as Thucydides fashioned it3: “Our public men have, besides politics, their private affairs to attend to, and our ordinary citizens, though occupied with the pursuits of industry, are still fair judges of public matters. Unlike any other nation, we regard the man who takes no part in these duties not as unambitious but as useless. We are able to ponder and judge affairs accurately, and instead of looking on discussion as a stumbling-block in the way of action, we think it an indispensable preliminary to any wise action at all.”

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The Prince, Penguin Classics 1961, tr. George Bull, pp. 99-100. Thucydides, Peloponnesian War, 2.40. I took this translation (which I have adapted) from the excellent Perseus website, which however does not identify the translator.

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Here the citizen is participant, not servant. Of course we do not possess the direct democracy of ancient Athens, but if we preserve the vital chasm between State and government, here too the citizen will be participant, not servant. And Machiavelli can only be refuted, and Pericles vindicated, if the civic duties of citizenship are accepted and recognised in practice. But this cannot happen unless the government is separated from the State; and it requires the citizen – mark this – to be bound to the State by ties which are both stronger and more gentle than the gyves of compulsory law. 10

Now it may be said that this division between State and government is merely another way of expressing the need, which we would all regard as obvious, that governmental power should be subject to the rule of law. If the only public power is the power of the executive, then whatever form the executive takes, the people are subjected to tyranny: the executive’s power, being unconfined by any compulsory rules set in advance by the law, is arbitrary and untrammelled.

And all of this, surely, is nowadays simply

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I would certainly accept that a primary reason for separating government from State, so that the government is smaller than the State, is to ensure that the executive is subject to prior laws which it has to obey. But this separation is more subtle than might be suggested by the uncontentious attractions of the rule of law. I have laid emphasis on the notion of the citizen’s duty to the State, and in contrast the notion of his duty to government. These contrasting ideas of the citizen’s duty spell out and justify the difference between State and government at a level beyond the claims, however irresistible, of the rule of law. Duty to government could no doubt be enforced by compulsory law, however surly the people. But duty to the State – the citizen’s duty of citizenship – requires more than the law’s strong arm. It cannot be purely dirigiste. It must be a duty willingly accepted; accepted and recognized by men and women who

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view the State, not as repressive governor, but as benign protector. They may or may not stand for public office; but they will take an interest in public affairs, local perhaps, maybe national, because they believe that the concerns of the community are their concerns also. They know that obedience to the law is a moral imperative, even if you disagree with the law in question. They know that the greater good should sometimes prevail over the vindication of individual right, even though their lawyer tells them the individual right is rock solid. In short, in their relations with the State, they give as well as take. 12

This is, of course, a highly idealistic picture. It would be patently absurd to suggest that it is fulfilled in every street and village square. But if it is not fulfilled at all, if it is not valued as a practical aspiration, the idea of the State is reduced to a mere legal apparatus: and therefore little better than the State understood as nothing but government power. Even if the executive is controlled by law, a State of this kind, lacking the citizens’ commitment, will be nothing more than a quarrel between compulsory duties and enforceable rights.

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I think that this requirement of what may be called willing citizenship is an indispensable condition of Statehood, if the State is to be a thing of value and not an engine of dictatorship or at least of control. It is not a recipe for little Englanders, or for narrow nationalists anywhere. As an idea, it is neutral as to the location, geography and ethnic mix of the State. It may thus embrace the widest of community perceptions. Its essence is the notion of willing participation in the State, and not mere subjection to it.

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This conception, willing participation, calls up those ideas of culture and tradition to which I have referred. They may be the best guarantors of such participation. In contrast to black-letter law, they are no doubt amorphous, at least if they are to be treated as defining characteristics of Statehood. And I would certainly not be content to put forward an idea of the State which depended on woolly sociological aspirations. But

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the ideal of participation, of civic duty, is harder and better than that. Certainly, its flowering depends on ties between the citizen and the State, and the State’s institutions, which must to some extent be psychological and subjective. In the end, however, the values of participation and civic duty depend on an objective condition, though it is one which has many facets. It is that the organs of public power are and are seen to be the property of the people.

The State belongs to them, and they owe duties to it

accordingly: duties, in truth, to each other. 15

But this very condition depends on the presence and vindication of the particular and (I would suppose) uncontroversial attribute of Statehood, namely sovereignty: the possession of sovereign power. Unless the State which belongs to the citizens, and to which they owe duties as citizens, is sovereign, it is remote from them. Its institutions are correspondingly remote from them. The force of civic duty, and of the people’s participation in the State, is directly and correspondingly weakened.

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Before I embark upon the topic of sovereignty itself, I would like to issue a footnote to my discussion of the State. I said much earlier that questions like What is the State? pose a trap. The trap is the danger of confusion between two different questions: what do we mean by the State? and what should we mean by the State? Anthony Aust’s thumbnail definition – “territory with a settled population, a sovereign government and independence from any other state” – is a fair answer, though a minimal one, to the first of these questions. It is a sketch of how the term State is used. My point of view, that coherent ties of duty and service between citizen and State – willing citizenship – are themselves to be taken as a condition of Statehood, is a proffered answer to the second of these questions. There is, I would certainly accept, no self-contradiction nor any necessary offence to language in the proposition that a State, to be a State, need possess none of these benign qualities.

A State whose citizens are mere slaves to the

government will may still be called a State. Less starkly (though dismally enough, to

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my mind) a State where the relationship of the citizens to State authority consists in nothing but counterclaims of legal rights and obligations may still be called a State. So be it. I am advocating a type or condition of Statehood: the only kind of State which I say is worth having. Whether it is to be adopted or accepted depends, like the outcome of all contentious moral issues, on what you make of the argument. 17

Now I will turn to sovereignty. Sovereignty is the State’s legal power to rule itself, without any overlords. There are other forms of sovereignty, such as the sovereignty of the individual in ethical theory, exemplified by Immanuel Kant’s categorical imperative. But here I am concerned with political sovereignty, State power with no overlords. It is hard to find instances in which this power has been abandoned by a State. It may of course be lost by conquest, in which case the State becomes a vassal of the conqueror, no longer a State, save at most in a shadowed, etiolated sense. If it is allowed to retain some degree of self-government its Statehood is nevertheless transformed from what it was: it has become contingent on the conqueror’s will. However I know of one instance when State sovereignty was voluntarily given away. The kingdom of Pergamum in Asia Minor was bequeathed to Rome by its last king, Attalus III, who died in 133 BC. Interestingly, the Romans were in some doubt whether to accept the bequest. In the event they did so, and Pergamum became the rich Roman province of Asia. It was no longer a State; its sovereignty by Attalus’ will had passed to Rome. This instance of Pergamum points up a particular question. An absolute ruler, like Attalus, may no doubt will away the State he rules. It is no more nor less than his property. But what if there is no absolute ruler? Does a conditional ruler of a modern State, for example the elected legislature for the time being, enjoy the same right as was exercised by Attalus? This introduces an acute question about sovereignty.

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Let me first usher in a commonplace in discussions about Europe, namely those frequent references by politicians and others to the notion of pooled or shared sovereignty. It is

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important to see what may be meant by this. Plainly States may agree that some functions previously ordered by themselves individually should henceforth for the time being be carried out by another body which they jointly establish. In such a case the States have pro tanto delegated the exercise of sovereign power. The mechanism for such a delegation is the power, itself a function of State sovereignty, to enter into treaties. But a delegation of power is not a transfer of power, such as was made by Attalus III. The State which delegates power can recall it; the legal claim of power remains in its hands. 19

This difference between power delegated and power transferred is akin to, but should not be confused with, another difference: that between sovereignty de jure so called, and sovereignty de facto so called. The delegate is entitled by treaty to exercise sovereign power de facto; but it does not belong to him: he does not possess it de jure. But the language of this distinction is misleading. The delegate’s exercise of sovereign power is perfectly lawful. He has not usurped it. The owner of sovereignty has chosen to delegate it, and it may be assumed that all proper formal legal requirements to that end have been observed. To this extent the delegate’s power is certainly de jure; that is, it is in accordance with law. It is given by lawful process, not taken by revolution or other superior force. The real distinction here is not between de jure and de facto sovereignty. It is between sovereignty delegated and sovereignty transferred.

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And this returns us to the question: does a ruler for the time being of a modern State, for example the elected legislature, enjoy the same right as was exercised by Attalus III? Can it transfer its power, and not only delegate it? Does the British legislature enjoy such a right? The question is not only relevant to what might be called the Armageddon scenario, arising if all central State power were avowedly transferred to the institutions of the European Union, or, in theory, to any other new repository. It arises in relation to the handover (I choose the word as a neutral term) of State power to any degree, relating

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to any subject-matter. Is it a delegation merely, or is it a transfer? If the former, the delegate enjoys it only at the will of the State which makes the delegation. If the latter, the transferor State has no right whatever to recall and retrieve it: it is no longer that State’s possession. 21

Here it is very important that we should not conflate what are two quite separate questions. One question is: does the State possess the legal authority to transfer (not merely delegate) its own power? A second question is: in any given instance has it actually done so or is it proposing to do so? The first of these questions plainly touches the nature of State sovereignty. The second question assumes the State has authority to make such a transfer of power, and will fall primarily to be answered by reference to the engagement – in the present case the Treaty for a Constitution – which the State enters into. At this stage I am dealing only with the first question: does the State possess the legal authority to transfer its own power?

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In his essay The Constitution: Its Theory and Interpretation4 Geoffrey Marshall reminds us of HLA Hart’s proposal in The Concept of Law for two alternative models of sovereignty, the “continuous” and the “self-embracing” as Hart dubbed them. Upon the continuous model, the State owner of sovereignty could make any laws of any kind for any purpose, save only that it could not make laws changing or affecting its own powers. Upon the self-embracing model, the State owner of sovereignty was not so restricted, and could even make laws to destroy its own law-making power. That is to say, it could act as Attalus III of Pergamum acted. I should say that I regard this terminology – “continuous” and “self-embracing” – as unhelpful. It does not seem to possess any very potent explanatory or illustrative value. Now, Marshall points to the fact that by historic statutes the Westminster Parliament created sovereign States out of what had been colonies or dependencies.

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He suggests that this supports the self-

Chapter 2 of The British Constitution in the Twentieth Century, OUP (published for the British Academy) 2003. My reference is to p. 47.

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embracing model, because his instances exemplify acts of final and irreversible transfer of sovereign power. I find this unconvincing. The political impossibility of repealing such statutes, and purporting to legislate now for the internal law of former colonies, goes without saying. But the incapacity of the Westminster Parliament now to turn round and say otherwise has only become a legal impossibility, if that is what has happened, because the political chance of its so turning around has utterly withered away. It exemplifies, perhaps, the often fragile nature of the distinction between fact and law.

At all events the politico-legal position as regards former colonies, and the

march away from Empire, is no basis for the adoption of a sovereignty theory whose teeth will take the deepest possible bite into a different concatenation of powers, that between the UK and the European Union. Here, we are considering not what the UK might legislate for other territories and peoples with pressing and legitimate claims, but what the UK might legislate for its own citizens. In this context it is very far from clear that the appropriate theory of sovereignty is that of transfer rather than delegation. 23

I will leave this first question – does the State possess the legal authority to transfer its own power? – there for the present, though it would be wrong to conceal the fact that there is one decision in our courts which, in a judgment given by myself, favours the delegation rather than the transfer theory. The case is Thoburn v Sunderland City Council5, sometimes called the “metric martyrs” case. I would not of course misuse this platform to advocate my own reasoning. The case is in the books, where anyone interested may find it. It is, however, quite difficult to exaggerate the importance of this issue about sovereignty – a power to delegate or a power to transfer – in the context of any general discussion of the draft Treaty. It is critical to the question, what is the nature of the legal authority which the Member States may confer on the Union.

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[2003] QB 151.

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But surely here also, just as with the concept of the State, we are faced with our philosophical trap. We may describe how the term sovereignty is used: what it means. But this will not answer the further question: what should it mean. Should it allow transfer, or only delegation? We must not confuse the two, nor allow the rancour and asperity of political debate to confuse the two. It may be said that this second question is not open: our long constitutional history, and the patient discourse of our lawbooks over many generations, show that the legislature cannot touch the sovereign power of its successors, and there is no such thing as a transfer of State power which is not merely a delegation. Maybe so. But somehow the common law never closes off an argument. The notion of sovereignty may not be set in stone. What would we say, though, if we got to a state of affairs in which the ultimate place of power was not determined by the common law at all?

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The further question – have the Member States in any given instance actually transferred power, and not merely delegated it – is one which I will postpone for the moment. It would arise at the last stage of my discussion, when I will look at some of the Treaty provisions, Even then I must apologise in advance by telling you that I will in the end leave it hanging as a question. There exists of course the theoretical possibility that a Member State may purport to transfer power outside itself when in fact its legislature or other relevant government organ lacks the legal authority to do so.

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There is yet a further question which I should notice while dealing with sovereignty. Who decides whether the power has been delegated or transferred? This calls up the issue referred to in the European argot as competenz-competenz: who has the final authority to fix the division of legal power between the Union and the Member States. This has always seemed to me to be a peculiar question. I should have thought that on the face of it, only the law-giving organs of the individual Member State can decide whether that State possesses the legal authority to transfer, and not merely delegate,

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powers to the European Union, or indeed elsewhere. It is a matter of internal domestic law. The suggestion that such authority actually resides in the legal powers of the Union assumes that it has already been competently transferred to the European powers: but this begs the question we have considered upon the issue of the reach of sovereign power - transfer or delegation. 27

It would be wrong to leave the subject of sovereignty without noticing a distinction we should keep in mind. It is the distinction between the idea of State sovereignty – the sovereignty of every State – and the narrower idea, largely peculiar to British, or even on some views of the matter purely English, constitutional theory, of Parliamentary sovereignty. The two are not the same. It is perfectly conceivable that one State in Europe adopts a form of State sovereignty which allows transfer as well as delegation, and another allows delegation only. Whether it does so or not cannot easily depend on whether, within the State, the legislature is subject to superior control, such as by the accepted authority of a written constitution. As it happens, our traditional doctrine of the sovereignty of Parliament has embraced the notion that one thing Parliament cannot do is bind its successors. That favours a delegation, not a transfer, approach. But the same may be equally true of a State by whose constitution the legislature has no untrammelled power, if the constitution allows no more than delegation.

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Now I will turn to the meaning of treaty. I may deal with this rather more shortly. I wish to emphasise two features of treaties. First, an international treaty is forged by debate, compromise and negotiation between the governments of sovereign nation States, and the resulting text is likely to reflect this process. In A v Minister for Immigration and Ethnic Affairs6 in the High Court of Australia Dawson J said: “[T]he purpose of an instrument may… be pursued in a limited way, reflecting the accommodation of the differing viewpoints…” (my emphasis).

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(1997) 190 CLR 225.

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This provides an important insight into how treaties should be interpreted. The very process, sometimes delicate, of negotiation and compromise means that the resulting text may have to be interpreted minimally, to give effect to the common ground only, so as not to compromise “the accommodation of the differing viewpoints”.

The

interpreter’s task is to perceive and respect the limits, the edge, of the territory which the sovereign parties intended to pool.

This characteristic of treaties marks a large

difference between the approach to be taken to treaties and the approach to be taken to constitutions. There is good reason to interpret a treaty minimally: it is, at least it often is, an edgy compromise between sovereigns. There is every reason to interpret a constitution maximally: it is no compromise, but represents a single sovereignty. 29

This calls up the second feature of treaties which I will mention. It is closely connected with the first. A treaty belongs to its parties; it has no life apart from them. It is a premise of the ordinary conception of a treaty that its parties remain sovereign. Here I must anticipate what I will say about constitutions in order to draw a contrast. There is a categorical difference between a treaty and a constitution. A treaty is an exercise of power by sovereign States. A constitution is itself the repository of sovereign power.

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This brings me, then, to the meaning of constitution. In what does a constitution consist? Stripped to the bone, I think that a constitution’s minimum characteristics are twofold. (1) The constitution consists in the laws which define who shall be the ruler of the State, and what are the legal relationships between ruler and ruled; and (2) there are no laws superior to those which the constitution contains. Geoffrey Marshall’s essay, to which I referred earlier, elaborates four potential senses of the term “constitution”. They are interesting and instructive. I am however concerned with what at least the term means: as I have said, with its minimum characteristics.

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The first of these two characteristics – the constitution consists in the laws which define who shall be the ruler of the State, and what are the legal relationships between ruler and

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ruled – though sparsely expressed, carries a lot of implications. They include at least the following.

First, because the constitution is made of laws, it is a premise of its

meaningful existence that the law, at any rate the constitutional law, will be obeyed. In that sense it presupposes the rule of law. Here I must leave aside the role of convention (as opposed to law) in the British constitution as a distraction for present purposes. Secondly, the ascertainment of the ruler, and of the legal relationships between ruler and ruled, entail provision for legislature and executive, and the implicit requirement of the rule of law entails provision for the judiciary. Thirdly, those provisions in turn demand that the constitution fix the domain of each of these three pillars, legislature, executive and judiciary.

Fourthly, there must be a rule of recognition, to use HLA Hart’s

terminology, for the identification of what is to count as compulsory law. Fifthly and last, the rights and duties of the ruler must be stipulated, for that is a condition of the rule of law. 32

The second characteristic of a constitution, that there are no laws superior to the constitution itself, reflects two realities. The first is the sovereignty of the State. The second is the supremacy within the State of the law of the constitution over other laws. What is the relation between these two realities? The second is an expression of the first. Suppose a State which is not sovereign: a vassal State or a colony. One way or another it is subject to the dictates of another, superior State. The vassal State might possess what may be called an internal constitution. But a function of its subjection is that its internal constitution does not possess the second characteristic I have described: it is not the case that there are no laws superior to it. It is subject to a higher law, the law of the superior State.

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This brings me to the importance of the distinction between constitutional law and other law. The constitution of a sovereign State, and thus the law which comprises it, is singular or unitary. I mean: it must consist in a single power only. This is not a

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contingent, but a logical truth. If the constitution consists in two or more powers, there must be a law to decide which prevails in case of disagreement; but in that case, it will be this further law that is the true law of the constitution. 34

This tells us what is the relationship between the two characteristics of a constitution, namely (1) the laws which define who shall be the ruler of the State, and what are the legal relationships between ruler and ruled; and (2) that there are no laws superior to those which the constitution contains. The first of these entails the second. If there are superior laws, it is they that will define who shall be the ruler, and the relationships between ruler and ruled. It is they which will constitute the law of the constitution.

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These features, it should be noted, are as true of the constitution of a federal State as of a unitary State. The constitution fixes the reach of the powers of the units or sub-States which make up the federation. And I should emphasise that the logical requirement that a constitution be singular or unitary does not entail the very different proposition that changes to the constitution can only be made by a single body or person. Federal States in particular will commonly harbour arrangements under which constitutional change can only be effected by a specified consensus between different organs of the federation. But the arrangements are authorised, and only authorised, by the constitution itself; which thus remains unitary.

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A constitution, then, is the ultimate expression of State power. Now at this point I should emphasise a distinction between treaties and constitutions to which, in discussing the nature of treaties, I have already drawn attention. I have said that whereas a treaty is an exercise of power by sovereign States, a constitution is itself the repository of sovereign power; and whereas a treaty may often fall to be interpreted minimally, as an edgy compromise between sovereigns, a constitution should generally be interpreted maximally: it is no compromise, but represents a single sovereignty. Let me give a clear example. In ordering the relation between ruler and ruled, the constitution is likely to

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stipulate fundamental rights to be enjoyed by the citizen: rights of the kind incorporated into our law by the Human Rights Act 1998. They are to be given full effect. They are not to be compromised by minimal interpretations to accommodate differences of view among any actual or notional set of founding fathers. If such rights are qualified, they are qualified not out of any respect for give and take between the constitution’s founders. Any such notion has utterly passed away once the constitution is given. The qualification of such rights can only be a condition and consequence of the constitution itself. Thus it is well accepted that the ascertainment of the reach of constitutional rights in the UK involves the striking of a balance between the individual’s claims and the general public interest. There is no question of any give and take for the sake of other interests external to the constitution. Here is the marked contrast with a treaty. A constitution, once accepted, is itself the source of sovereign power. A treaty is no more nor less than an exercise of sovereign power. These are two wholly different things. 37

Now I will come to the Treaty itself. I have the final text of the draft submitted to the President of the European Council in Rome on 18 July 2003. I am aware that there exist further provisional revisions made in the context of the draft Treaty’s consideration by governments, in particular I think last November, but I have had some difficulty in getting access to those.

Professor Van Gerven, one of my very distinguished

predecessors in this series of lectures, has said7: “The draft is named ‘A Treaty Establishing a Constitution’ and, indeed, it is exactly that. On the one hand, the adoption and implementation of the draft document will depend upon the mutual agreement of the Member States, like an international treaty; on the other hand, the draft is intended to establish a basic legal order, as does a constitution.” This observation calls up the question, I think, whether there may be difficulties ahead arising from the tension between what I have called the required minimalist approach to

7

At page 4 of chapter 6 of the draft (April 2004) of what I understand is his forthcoming book on the Union. I do not have the title. He very kindly sent me the typescript of chapters 6 and 7, which I understand encompass the subjectmatter of his lecture, which unfortunately I was unable to attend.

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the interpretation of treaties, and the required maximalist approach to the interpretation of constitutions. I shall come shortly to what may be an acute example. 38

If one then looks at Part I Title I, Definition and Objectives of the Union, one finds, I think (especially in I-3, The Union’s Objectives), a draft so widely cast that it is difficult to see what is excluded: “The Union’s aim is to promote peace, its values and the wellbeing of its peoples”8. Looking back to see how the Union’s values are articulated, one finds9: “The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. These values are common to the Member States in a society of pluralism, tolerance, justice, solidarity and non-discrimination.”

39

Article I-10(1) has been the subject of much discussion, and is largely the focus of what I desire to say about the Treaty: “The Constitution, and law adopted by the Union’s Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States.”

Questions asked about this draft provision have frequently yielded the answer that it does no more than replicate existing EU law. The reference must be to such seminal, well known early decisions of the European Court of Justice as Van Gend en Loos10. The Court stated (at 12): “… the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.” There shortly followed Costa v ENEL11. This is what the court said in that case (593): “By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. 8

Article I-3(1). Article I-2. 10 [1963] ECR 1. 11 [1964] ECR 585. 9

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By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.” 40

Now, I have to confess to some considerable difficulty with the proposition that Article I-10(1) does no more than replicate this jurisprudence. Van Gend and Costa were decided in the early days of the Common Market, whose legal competences were, plainly, very considerably circumscribed. It is, of course, true that they have been referred to in a great deal of later learning and never been doubted or departed from. There is no doubt that they stated the law of the European Community at the time of British accession on 1 January 1973. But in those earlier years I think many lawyers would have understood the impact of this jurisprudence as being to the effect that in areas of Community legal competence, notably of course the basic economic provisions relating to free movement and so forth, substantive legal rules made by the Community legislators and associated principles developed by the Court of Justice must prevail over any national measures in the same field; and indeed the Member States might not enact or carry into effect any measures inconsistent with the relevant Community law.

40

But the competences of the European Union have of course burgeoned very greatly; and the draft Constitution, by the increase of qualified majority voting, the re-shaping and the making of certain institutions, and the extension of Union objectives to the near universality, will set in place a structure whose over-arching nature at least seems to possess some of the attributes of a State. Would it possess a “sovereign government”, to use Anthony Aust’s expression?

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To my mind, the answer depends in large measure on what we make of Article I-10(1). We have to ask a question about this provision which I have not yet seen confronted. It is this: do the words “the law of the Member States” include the constitutional law of the Member States? I do not think this question is answered by appeal to the early case-law 20

exemplified by Van Gend and Costa. Nor is it answered, at least not obviously, by the text of Article I-10(1). “Law of the Member States”, you might think, is an expression apt to embrace all their laws: all their laws, at least, save any which are excluded from the provision, and none are. But that does not look like a conclusive consideration. If the intention here on the part of the Member States is to abandon their constitutional sovereignty, one might have expected rather louder trumpets to be sounded than the shout given by the words of Article I-10(1). 42

I suggest that the point is of the first importance. Recall my argument that constitutional power must be singular or unitary; and my appeal to the necessity of deciding whether what is on foot here is the delegation or the transfer of power. If it is delegation only, then so far as I can see Article I-10(1) does not give the Constitution primacy over the constitutional laws of the Member States. If it is transfer, then just such a primacy is given. And if it is transfer, it is difficult to see that the Union is other than a federal State: subject, perhaps, to the interesting provisions for withdrawal from the Union contained in Article I-59. In that case, I hope we would look to see whether it will possess those coherent ties of duty and service between citizen and State – willing citizenship – which I have urged should be taken as a condition of Statehood. Whether that is even possible lies well outside my competence to discuss. But I think it is a vital issue, for the sake of the tranquillity of our constitutional arrangements, whatever concrete form they take.

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Is my question about Article I-10(1) lent an answer from other provisions in the draft Treaty? Not, I think, directly. There are some provisions to notice. I have described the power to enter into treaties as an exercise of sovereignty by States. Article I-12(2), a provision dealing with the Union’s exclusive competences, provides: “The Union shall have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union, is necessary to enable it to exercise its internal competence, or affects an internal Union act.” 21

It is, I think, also worth noticing the provision made by Article I-17(1), which looks like something of a catch-all: “If action by the Union should prove necessary within the framework of the policies defined in Part III to attain one of the objectives set by the Constitution, and the Constitution has not provided the necessary powers, the Council of Ministers, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall take the appropriate measures.” 44

It is certainly possible to view this draft Treaty in different ways. There is a great deal to discuss in the important provisions it makes for the division of competences, the Union institutions, qualified majority voting, the Charter of Fundamental Rights (which occupies the whole of Part II) and many other matters. My only concern is to invite discussion, against a better understood background as to the meaning of State, constitution, treaty and sovereignty, about what exactly this proposal would do to move the place, in our legal and political world, occupied by those basic ideas. The Charter – Part II – is of some special interest. If it were to take its place as law, does it override (a) the impact of the Human Rights Act 1998 and our relationship with the court in Strasbourg, and (b) the bite and effect of the common law’s own evolved principles of fundamental rights? Again, we face the question whether the draft Treaty proposes the conferment of an undivided sovereignty of the quality which a State possesses. And again, are we to apply a minimalist treaty approach, or a maximalist constitutional approach to the task of interpretation?

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There is one provision in the draft which I feel entitled to criticise. Article I-18(2) lists the institutions of the Union. There are five of them. One is the European Commission. Another is the Court of Justice. The second sentence of Article I-18(3) provides: “The Institutions shall practice [sic] full mutual co-operation”. Now, as is well known, the Commission is a frequent litigant before the Court of Justice. How can it be right for the Court to be placed under an express duty of “full mutual co-operation” with a party over

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which it is bound to exercise, in the course of sometimes hotly disputed litigation, an impartial and dispassionate judgment? 46

I end where I began. My concern is that the participants in the debate about this draft Treaty should know where it leads them in constitutional terms.

How far does it

assimilate the Union to a State, and to the extent that it does, will it fulfil qualities of Statehood to which we would attach importance? How far does it transfer, and not only delegate, the unitary quality of constitutional sovereignty? I hope these questions will be cleanly and directly confronted. They are important questions along the path to an understanding of the constitutional arrangements under which we, all our fellow citizens, will be living in the future. That is why they reminded me of the jackdaw and the crow. They guided the two Athenians, Euelpides and Peisthetairos, who leave Athens to look for a new city – a new constitution. They guide them to the hero Tereus, who has been transformed into a hoopoe. And at length there is created a new constitution in the sky, to rule mankind and starve the gods into submission. The story is told in Aristophanes’ wonderful comedy, The Birds, which was awarded the second prize at the City Dionysia in 414 BC.

It is the longest, and the most lyrical, of the eleven comedies of

Aristophanes which have come down to us. At the end, they all live happily ever after. There is a silent figure, usually represented as a beautiful woman, who has no lines to say; but she is called Sovereignty. Peisthetaerus sings12: “Come Sovereignty, my treasure Stretch out your hand and take my wing, and we will dance a I’ll lift you lightly off the ground, and skywards we will tread, And music and rejoicing shall surround our marriage bed.”

12

Tr. David Barrett, Penguin Classics 1978.

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measure.