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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 12 April 2015
The End of Britain? Thoughts on the Future
of
National Sovereignty in a Regional Europe
BY W JOHN HOPKINS*
Introduction
The twentieth century was a century of revolutions. Some, like those of Russia in 1917, followed the traditional path of drama and violence, yet others equally fundamental to the governance of their countries occurred without the bloodshed that normally accompanies such change. The latter path has been the one followed in western Europe since 1945, where two constitutional revolutions have occurred almost without being noticed. Together these revolutions by stealth have dismantled the traditional nation-state model in western Europe. This is not to say, however, that the nation-states of Europe do not continue to operate and play a significant role on both the European and world stages. The continued importance of the national tier, as a significant and perhaps primary level of governance, obscures a more subtle truth. Although the nation-state continues to play the prominent role in European governance, it is not the same entity that existed in the prewar world. A constitutional revolution from above has seen ever-greater authority removed from the hands of individual nation-state or `Member-State' governments and placed under the collective authority of the European Union's institutions. In tandem with this, a second, and even less visible, revolution from below has seen the development of policy-making below the nation-state. It is this regional revolution which forms the focus of this paper.
The twin revolutions in European governance reflect wider changes in the nature of governance across the globe. The use of the term `governance' reflects the expansion of public decision-making processes outside the institutions of nation-state 'government', but this is only part of the story.' Public decision-making has long occurred outside the confines of the institutions of the state and although recent
* Dr W John Hopkins, Law, University of Hull, UK.
1 Lewis, ND Law and Governance (London: Cavendish
Publications, 2001).
2 Yearbook of New Zealand Jurisprudence Vol
5
trends reflect a step change in such activities, they do not represent a
fundamental break with the past. The fundamental change,
at least in terms of
European territorial government, has been the end of the sovereign status of
nation-state institutions against
other forms of public authority. From the late
eighteenth century to the latter half of the twentieth, the institutions of the
national
state were, except in a few specific and limited exceptions, the
supreme authority within their borders. This is no longer the case.
These
changes are most extreme in the member states of the European Union, but the
pressures that brought them about are being experienced
throughout the
globe.
This paper focuses on the development of the regional tier in western Europe through the lens of the United Kingdom's recent regional reforms. Although the United Kingdom was a late arrival at the regional party, it finally succumbed to the regional revolution through the process of 'devolution', which created a Parliament in Scotland and Assemblies in Wales and Northern Ireland. The government also remains committed to regional Assemblies in England when 'clear popular consent can be established' .2 By instituting these reforms the UK became the last large member state of the EU to develop a regional tier of policy-making. Despite this, and in typically British fashion, the continental European regional revolution was largely ignored until devolution brought a particularly British version of regional government into being on the British mainland.
Devolution has been described as the most important constitutional change introduced in the United Kingdom since the Great Reform Act of 1832. The Labour Government itself, in its ever-modest way, proclaimed these reforms as the most significant this century.3 The implication was that these were very British reforms, instituted as a result of peculiarly British factors. In fact, little could be further from the truth. Although these reforms are clearly revolutionary for the United Kingdom's constitutional settlement, the reason for this is that
3 Scotland's Parliament (Cmd 3658, July 1997)
2.
they are very un-British reforms. Although wrapped in the trappings of
British constitutionalism, not least in their professed recognition
of the
continued sovereignty of the Westminster Parliament,4 these
reforms are rooted in developments in continental Europe.
By the mid-1980s, the United Kingdom was the last large member state in the EU to resist the revolution in regional governance. Perhaps because of this, debates on the future of the nation-state in the regional context largely passed the UK by. The spectre of the EU may have presented serious challenges to the future of the British state, but talk of a 'Europe of Regions' and the hollowing out of the state, at least in territorial terms, rang rather hollow in a British context. 'Crisis, what crisis?' cried Britain, as she continued to concentrate on digging an even deeper hole in the sand, in which to bury her head. For this reason few paid attention to the revolution in governance that had been steadily developing across La Manche.
Yet, devolution is very much part of this revolution. In fact, one can go as far as stating that devolution is a European phenomenon. The terminology in Europe may be different (the phrase most commonly used is regional government) but the principle of creating a democratically elected level of policy-making between the local and the national tiers remains the same. It is a principle that has been making steady practical progress across the continent throughout the past half-century.
The arrival of devolution in the UK has put an end to this self-imposed exile, and policy-makers and academics now talk endlessly on the devolution issue. In some ways this has been a transformation from the sublime to the ridiculous, with a total lack of interest being followed by a maelstrom of activity which has created much heat but little light. One hopes that the enthusiasm shown by some academics to publish in this area will continue when the subject becomes less fashionable, but when there has been more time to actually assess the system. Nevertheless, the increased interest in all things devolved has led to a much greater acceptance amongst both academics and policy-makers that the UK's devolution project is part of a wider European phenomenon.
4 Scotland Act 1998, s28(7) and Northern Ireland Act 1998,
s6.
4 Yearbook of New Zealand Jurisprudence Vol 5
Talk of a Europe
of regions is clearly premature but the effect of the regional revolution upon
the governance of Europe and the sovereign
nation-state has been considerable.
This is a factor that is not yet reflected in the institutions and structures of
European governance.
The structures of European government remain focussed on
the traditional nation-state, despite the fact that in practical terms it
no
longer exists. In essence the regionalisation of European governance has seen
the death of Britain and every other traditional
European nation-state, but
Europe has not yet woken up to this fact. The failure to recognise this change
has hampered efforts to
find something to put in place of the traditional model
and until a conceptual replacement is found the consequences for democratic
and
accountable government will be considerable.
The dominance of the nation-state
It is difficult to overemphasise the dominance of the nation-state paradigm in discussions of governance, particularly in Europe. All discussions of legal systems take place in national, international or, exceptionally, sub-national contexts. This paradigm has, since its emergence in 1789, brooked no challengers. In the words of Abbe Sieyes, 'it recognized no interest on earth above its own — neither that of humanity at large nor of other nations' .5 In its essentials, the nation-state paradigm revolves around the 'sovereign hard border'. This is the concept that all policies can be administered and developed within a single policy area (the nation-state) which is supreme within these boundaries. Beyond these hard borders, another set of policies will develop. Limited variation may be allowed within the state, but not across the hard border which defines the start of another polity. This paradigm remains the touchstone of our understanding of governance.
The fundamental problem with the concept of 'hard borders' is that policy areas do not stop at national borders; neither do they encompass whole states. The needs of a sheep farmer in the French Alps will be far closer to those of his Swiss, German or Italian neighbour than to those of a fellow French steelworker in St Etienne. The most suitable territories for developing policies will therefore lie at a variety of levels,
Hobsbawm, E The Age of Revolution (London: Weidenfeld and Nicolson,
1962) 59.
including the international, regional and local, not merely the
national. This is only part of the problem, however. The various territories
that are most apposite for the development of particular policies will not
coincide. For example, Environmental Agency policy in
England is now
administered along regional boundaries that reflect river catchment areas. This
is a move that has been broadly welcomed
by environmentalists and experts in the
field, as it more closely reflects the reality of environmental protection,
which is heavily
focussed on protection of watercourses. Ironically, moves
towards unified regional administrative structures and regional government
in
England may mean the boundaries of these administrative units returning to areas
that reflect political expedience rather than
environmental concerns.
Although the failure of functional policy areas to reflect the boundaries of the nation-state leads to significant problems for efficient and successful governance, the most explosive problem relates to the issue of identity. Few identities conform to these neat boundaries and most states include significant minorities who do not identify with the dominant culture of the state or even the nation-state itself. It should be noted at this point that the concept of a 'minority' is itself a consequence of the 'hard-bordered' nation-state idea. The 'minority' is only a minority because of where the lines on the map are drawn.
Linguistic difference is only one, rather crude, method of measuring non-national identities but it is, nevertheless, an indicator of such variation. Despite the best efforts of the more nationalistic of European nation-states, linguistic minorities are an integral part of every European member state with the exception of Portugal (and in this example, the island communities and some mainland regions exhibit significant cultural differences). Some European states continue to assert that such differences do not exist within their territory, in a particularly strong cultural manifestation of the 'hard-border' concept. The actions of Greece in this regard are particularly objectionable. A Greek Vlach speaker was recently imprisoned for distributing a leaflet published by the European Bureau of Lesser Languages, which mentioned the Greek 'minority' languages.° This European Commission-sponsored body has in fact recognised Greece as the European state with the
6 Decision 11263/2001 Athens Court of First
Instance.
6 Yearbook of New Zealand Jurisprudence Vol 5
most
minority languages (ten), none of which are officially recognised and some of
which are actively repressed.
The solution to the non-alignment of identities and states cannot, of course, be the redrawing of boundaries to reflect a 'true' definition of nations in Europe. Just as policy areas do not coincide with each other, people do not live in neat boxes that can be conveniently divided into `nations'. Few cultural identities stop at any line on a map and wherever a line is drawn, a 'minority' will be left on the other side. In Europe, as elsewhere, unless one indulges in ethnic cleansing (an objectionably sanitised term for racial genocide) to achieve one's goals, neat 'one size fits all' approaches to national identities will always fail. In essence, although the nation-state concept attempts to deny this reality, people do not live in normative national units. Societies that have experienced colonisation or plantation, such as Canada, New Zealand and Northern Ireland, are particularly good examples of this. The last of these will be returned to later.
The myth of nations
The fundamental problem with the hard-bordered nation-state concept is that it is based upon a false presupposition. Traditional nationalist views of governance argue that the nation-state unit of governance is rational because it is the political manifestation of an organic concept, namely the nation. The absurdity of this idea is particularly obvious in states that have been influenced or indeed created by colonialism. Nevertheless, such is the power of the national myth that this does not stop the United States from trumpeting the concept of the American people. As Gellner has demonstrated, nations do not exist without a state or similar institutions to create them.' Nations are a consequence of the centralised state, not a precursor to it.
The fallacy of the national myth is nevertheless a powerful one. It has become so powerful that most individuals now identify with a nation. What must be questioned is whether these manufactured identities are enough to legitimise the continued use of hard-border national territories to govern Europe and indeed the globe. There are three reasons why this should not be the case. First, although national identity
7 Gellner, E Nations and Nationalism (Oxford: Blackwell,
1983).
is important, it is not the only identity that each individual
possesses. We are identified by our beliefs, religions and languages,
to name
but three. Why should the national identity be given a higher status than these
in relation to governance? Second, even if
we accept national identity as having
a higher status than other types of individual identity, significant numbers of
individuals
who live in a territory do not identify completely with the
nation-state which lays claim to that territory. In Europe, Spain, France,
the
UK and Belgium (amongst others) all have significant micro-nationalities within
their territories. There is, nevertheless, a
more fundamental question. Why
should concepts of sovereign government be attached to any identity? This is the
crux of the issue.
Ideal policy areas will not coincide with concepts of
territorial identity; why must they be forced to do so?
The answer to the problems of the nation-state, as already mentioned, cannot be the redrawing of borders to represent 'true' identities. Such micro-nationalist solutions fail to realise that it is the concept of indivisible sovereignty, and hard borders themselves, that create these difficulties. To reorganise borders to recognise new sovereign states entirely misses the point, and recreates the problems of the nation-state on a smaller scale. It is necessary instead to reassess the whole premise of the sovereign nation-state and the principle of sovereignty itself. We must discard the concept of hard borders and adopt a softer approach to territorial governance.
Although conceptual changes to the understanding of governance have come only slowly, a movement away from the concept of hard borders has been experienced at the practical level across western Europe in the postwar period. Under the dual pressures of the EU and the development of regional democracy, the practice of hard-bordered sovereignty has changed.% The problem for public lawyers is that the practical reorganisation of governance in western Europe has not, until recently, been accompanied by a conceptual reassessment. We continue to think of European governance as if the Westphalian nation-state system still dominates, or at least as if the concept of sovereignty that it was based upon is still valid. Although the hard-bordered nation-state remains the key player in the EU, and to suggest otherwise is to
8 MacCormack, N Beyond the Sovereign State (1993) 56 MLR
1.
8 Yearbook of New Zealand Jurisprudence Vol 5
ignore the
evidence, it is no longer the only player. Yet most member states of the EU
continue to treat the development of alternative
democratic reservoirs as
exceptions to the sovereign rule or annoyances to be ignored.9
Until the European structures of governance recognise the challenges to the
traditional sovereign model, the EU' s institutions will
continue to struggle
with the reality of modern territorial governance.
Soft borders and European governance
The term 'soft borders' is used to describe the developing alternative to the 'one size fits all' of the hard-bordered European nation-state that has been in decline in postwar Europe. The sovereignty of the hard-bordered nation-state is being replaced by more fluid systems where different policies are handled by varying levels of government. In its extreme form it sees the territorial organisation of government divided according to policy area. Under such a system units of governance are no longer coterminous. This form of the soft-bordered concept has been experienced in a few specific European states, which we shall examine in more detail below.
Less extreme examples have seen the stretching of nation-state sovereignty between the local and the European levels and the creation of new policy actors. This softening of policy borders has been termed `glocalisation', particularly in regional studies and political science literature, although the term can be misleading. In fact the process has not seen the development or empowerment of local levels of government. In European examples, local government has often been the loser in these developments. Limited by both financial and, in the United Kingdom's case, legislative strait-jackets, local levels of democracy have not prospered in the postwar period. The beneficiaries have been the new levels of democratic regional government developed between the local and the national levels.
Whatever one wishes to call it, the softening of policy borders or `glocalisation' represents a recognition that the traditional hard
9 Only Belgium, Germany and Austria signed the Amsterdam protocol applying
the principle of subsidiarity to sub-national units, under strong pressure
from their constituent federal states.
bordered nation-state cannot deliver
the policies required of the modern world. Not all policies can be settled on a
national level.
International, cross-border and sub-national units are all
necessarily components of modern territorial governance.
To a lesser, but growing, extent these units of governance have also been utilised to allow recognition of multiple identities within the `national' state. The concept of multiple national identities may not be a new one, but it is clearly a growing phenomenon in Europe. Increasingly it is also one that is reflected in the structures of governance themselves. Scots, for example, famously carry two, and now three, levels of identity, classing themselves as Scots, British and European, although between individuals the emphasis on each identity may be different. The problem has been that, although ideas we could loosely class as 'soft borders' have underpinned the regional reforms, the concept of the hard-bordered unit remains the paradigm within which the institutions of government operate.
The European nation-state is therefore threatened on two interlinked but separate fronts. The EU presents a serious challenge to the authority of the nation-state from above. Significant areas of policy must now be undertaken within the frameworks established at the European level, and as the European single currency establishes itself these limitations will only get greater. The consequences of the EU for national sovereignty are well documented and we need not dwell on this aspect further here. Instead, for the rest of this paper, we will focus on a second, less well-known, revolution in governance hinted at above.
The phrase 'Europe of Regions' has been used as shorthand for the argument
that the development of the regional level will make the
nation-state redundant.
Debate has raged over whether such a structure is developing or imminent, but
this is a rather misguided
argument. It is extremely doubtful that the regional
level will become the key level of the EU, at least in the foreseeable future,
but this is largely irrelevant to the current discussion. The important point is
not whether the EU is a collection of regional or
member-state governments (a
debate which reflects the nation-state paradigm), but rather that the whole
system of territorial government
has changed. Whatever the future holds for the
European regional tier, it has already altered the practice of government in the
EU.
Its development has already had an impact on sovereignty,
10 Yearbook
of New Zealand Jurisprudence Vol 5
democracy and accountability in the
Europe of the twenty-first century, and we must alter our perceptions of
governance accordingly.
The rise of the regions
The years after 1945 saw a regional revolution sweep across the states of continental Europe. This was all the more surprising given the lack of success such systems had enjoyed in the pre-war period. The Weimar Republic's unbalanced and weak variant of federalism collapsed after only fourteen years (1919-33) while the Austrian federation suffered a similar fate in 1935. In Spain, the development of a regional republic was brought to a grinding halt by the outbreak of civil war in 1936 and, although one regional government in the form of the generalittit of Catalonia struggled on until 1939, the situation was far from normal. On this evidence and the lack of any other examples (with the curious exception of Northern Ireland) Europe was not fertile ground for the development of non-sovereign models of governance.
Despite this inauspicious start, the period since 1945 has seen the proliferation of such systems of divided sovereignty (both in formal and practical terms) across the continent. Germany and Austria reestablished their federal systems in 1945, while Italy too moved towards a regional structure in its constitution of 1948. In each of these examples, the inclusion of regional or federal structures in the new constitutions was a reaction against the centralisation of the fascist era. To some extent, this was supplemented in the Italian case by micro-nationalist pressures supplied by the peripheral regions of the Italian state. Regionalist resistance movements controlled several of these territories and the Italian authorities were faced with little choice but to accept a regional structure or risk the fragmentation of the state. In the event, the wider regional aspects of the Italian constitution were not implemented for thirty years and only the peripheral, or 'special', regions received any autonomy.
This initial introduction of federal and regional government into the heart
of Europe had a mixed reaction. In Italy, some 'special'
regions did not perform
well, with allegations of corruption and incompetence being levelled at Sicily
and Sardinia in particular.
This was not a good advert for regional democracy.
In Austria too, the federal system was limited in its effectiveness, due to the
weak nature of its entrenchment in the Austrian constitution and the dominance
of the national party
system. In Germany, however, the federal system was
seen to be part of the economic miracle that saw the Federal Republic rise
phoenix-like
from the ashes of the Third Reich. The success of the federal
system in Germany was to prove a powerful argument in favour of regional
government elsewhere in Europe.
In the years that followed the establishment of the federal and regional regimes in the immediate postwar era, arguments for further devolution of policy-making power to a sub-national level of government were muted. All was quiet on the regional front. The western European state seemed secure in its paradigm. The only threat to the concept of nation-state sovereignty came from above, in the shape of the European Communities. Even these remained very much a nationally controlled club, and progress towards European policies was slow. Nevertheless, the existence of this pan-European stabilising force was a significant factor in what was to follow.
In the late 1970s W.R. Beer chronicled an upsurge of regional movements in France, which he described as the 'unexpected rebellion' .'° These developments were not confined to the borders of the 'One and Indivisible Republic' and in fact similar events were unfolding across Europe. These saw the emergence of regional movements and micro-nationalist parties across the continent and as a result the re-ignition of the regional debate. Some commentators equated the emergence of these sub-national territorial movements with a rise in regional identities, but this was a misunderstanding of the phenomenon. Most European regions lack such strong regional identities. It is not enough, therefore, to explain the rise of regional government and the softening of the nation-state model purely in terms of such phenomena.
The 'rise' of regionalism can be broadly attributed to three drivers: the politicisation of regional identities, changes to the economic and welfare structures of Europe, and a desire for greater democratic control and accountability. Those regions that experienced a growth in micro-nationalist and regionalist political movements were those with a tradition of cultural difference within the nation-state. What occurred
io Beer, WR The Unexpected Rebellion: Ethnic Activism in Contemporary
France (New York: New York University Press, 1980).
12 Yearbook of New Zealand Jurisprudence Vol 5
in the 1970s was the
politicisation of existing regional identities. Organisations of regional
defence, which had previously attempted
to defend regional cultures, were
superseded by movements that put cultural issues in a political context.
In states where such traditional sub-national identities did not exist, the nation-states themselves aided their creation by recognising the need for functional regionalism. The development of economic planning in France in the 1960s in particular required the creation of regional plans and, by implication, institutions to produce them. In addition, the growth of the welfare state led to questions about the accountability and efficiency of the state in operating it. This too led to the acceptance of regional administration of welfare service, particularly in Scandinavia and Italy. These factors, combined with the belief that regional government is a democratic good, drove the reform process. The importance of these various drivers is reflected in the structures they produced, but the common denominator amongst such movements was dissatisfaction with the hard-bordered, sovereign, nation-state.
This second burst of regional activity led to a series of regional reforms across the continent and started a wider process of reform, which still continues today. Italy finally began implementing the regional aspects of its constitution in 1976, while Belgium started down what was to become its long march to federalism in 1970. The collapse of fascism in Spain and Portugal also allowed regional reform in these states. The ratification of the Spanish regionalist constitution of 1976 was followed by a whirlwind of activity, which resulted in the emergence of an entirely regionalised Spain in 1986. Even Portugal, the most ethnically homogeneous state in Europe, broke with its unitary tradition. Dissatisfaction with the centralised state of Salazar led to a regionalist constitution and the establishment of regional government in the Azores and Madeira) France too succumbed to the regional revolution in
11 Although the Portuguese constitution allows for the development of
`Administrative Regions' on the Portuguese mainland, this section was not implemented. A recent referendum on the issue voted against such reform (the result favoured by the government) and regional government on the mainland of Portugal is currently off the political agenda.
1982, with the creation of special regions in Corsica and the overseas territories, and weaker administrative regions in metropolitan France. Even in Scandinavia, the development of regional ideas led to the introduction of democratic 'middle' levels of government from the 1970s onwards. As this sea change in territorial governance swept across the continent, only the UK remained aloof. Even here, however, appearances were deceptive. Increasingly, administrative responsibility was handed to regional administrative offices in Scotland and Wales, while a confused system of regional administration began to emerge in England. The nationalist movements of Scotland and Wales also grew, as did the rumblings of discontent in England; however, the failed Scottish and Welsh devolution referendums (1979) effectively derailed such movements for a decade.
The regional revolution was not a single event, however, and the years since its emergence have seen the continued development of the regional tier across the continent. Some of the Spanish autonomias (notably Catalonia and Euskadi) have developed into significant players on the European stage, while Belgium became a formal federation in 1993. The devolution of power to Scotland, Wales and Northern Ireland was the final major piece of the regional jigsaw but the revolution continues. The creation of the European Community's Committee of the Regions, under the Maastricht Treaty, was another moment of symbolic significance. Regions are now formally recognised as playing a role in the policy-making process in the EU. The Council of Ministers itself now regularly includes representatives from the Belgian regions, the devolved institutions of the UK and the German kinder, amongst others. There can now be little doubt that governance in Europe can no longer be explained entirely in terms of the hard-bordered nation-state.
The regions and soft borders
The development of the regional policy tier is the clearest territorial
example of the softening of national borders in the EU. Through
the development
of the regional tier, policies are increasingly developed in territories other
than the national. It is noticeable
that regions are universally keen to ally
with regions in other states, often with the encouragement of the EU (and to the
chagrin
of some member states).
14 Yearbook of New Zealand
Jurisprudence Vol 5
Detailed descriptions and analyses of the regional
structures of EU member states can be found elsewhere,'2 but it is
useful at this point to sketch the practical impact that the development of the
regional tier has had on the governance
of the EU. At its most basic level the
development of the regional tier has made it incorrect to talk of national
policies in many
European states. In the examples of Italy, Spain, Germany, the
United Kingdom," Belgium, Finland and Austria (amongst others), legislation
varies within the borders of the state. In effect a three-tier hierarchy of
legislative norms has developed within the EU. The directives
and regulations of
the European Community apply wherever one is in Europe. Beyond this the
legislative provisions will vary according
to both the member state and the
region one happens to be in. Even European legislation is not applied
universally, as each member
state and legislative region will interpret
directives in their areas of responsibility into their own legislative
structure. Even
beyond this, regions that lack legislative authority can use
their administrative autonomy to develop distinct policies. The French
regions,
for example, have been instrumental in developing the rail network, while
economic development in France has a significant
regional component. In several
areas of policy, therefore, differences exist within the state. Policy areas are
smaller and in many
cases vary according to subject matter, as regions
increasingly cooperate on certain matters. This is particularly true of those
regions that lie on the borders of existing nation-states.
The formal powers are of course only half the story. The real power or weakness of the regional tier is to found in the field of finance. For
example, the legislative weakness of the Danish amter and the French regions is at least partially made up for by their financial independence. On the other hand, the formal authority of the Italian regioni has been seriously undermined by the financial constraints within which they must operate. In the United Kingdom too, the devolution settlement is on financially shaky ground, with financial resources lying almost exclusively within the gift of the United Kingdom executive. It is interesting to note that the Scottish electorate has finally realised that the power of the Scottish Parliament to lower or raise income tax by a mighty 3p, which so exercised the minds of the press during the referendum campaign, pales into insignificance when compared with the ability of the UK government to alter the Scottish block grant at will. Nevertheless, although the de jure power of the regional tier must be treated with a degree of caution, the impact of the regional level remains significant.' 4
Although the development of this regional 'third level', to translate the German phrase, is an example of the soft-bordered phenomenon, it still retains many features of the hard-bordered model it was developed to challenge. Regions still operate within fixed territorial boundaries and although they appear more willing to move beyond them, most retain a territorial basis to their authority. In a few examples, however, we can see the development of a far more radical approach to territorial governance, which utilises the soft-bordered concept to a far greater extent.
Belgium has addressed, through this concept, a problem that is common in most nation-states and exemplifies the failure of the hard-bordered model. More than one identifiable community (in Belgium, actually three) share the same territorial home. In the Belgian case, the French, Flemish and now German speakers of the Belgian provinces have had an increasingly fractious relationship, which by the 1970s was resulting in significant civil unrest.
is The issue of regional finance is part of a wider problem (briefly dealt with
below) whereby the regional tier is formally responsible for particular policy areas but less visible controls, financial or otherwise, mean that the practical authority lies elsewhere. This leads to confusion amongst the electorate and a consequent blurring of the lines of democratic accountability.
16 Yearbook of New Zealand Jurisprudence Vol 5
The Belgian
federation, created by the constitutional reform of 1993, is unique amongst
federal structures, having two non-coterminous
regional structures of
government. The Belgian state is divided into three regions (Brussels, Walloon
and Flanders) each possessing
extensive legislative and financial autonomy in
fields of economic competence. In tandem with the regions, three communities
(German,
French and Flemish) are responsible for cultural matters within their
territories. The borders of these two groups of institutions
do not coincide.
The German Community comprises the German-speaking provinces, based entirely
within the Walloon Region. The French
Community comprises the remaining parts of
Wallonia plus the French-speaking population of Brussels (by far the majority).
The Flemish
Community comprises the entire population of Flanders plus the
Dutch/ Flemish population of Brussels. Despite the original premise
that these
institutions would be based upon individuals, not territories, the practice has
been somewhat different. Those speakers
who live on the 'wrong' side of the line
are classed as belonging to the community on whose territory they live. Although
they are
granted specific rights, such as the right to vote for senators from
their own language community, and the right to deal with official
bodies in
their own language, these have been a serious bone of contention. The Flemish,
always fearful of cultural dominance by
the French, have called for the
abolition of these `special' rights, arguing that they were intended only as a
stopgap measure. The
French Community is vehemently opposed to their abolition
(many more French speakers live in Flanders than Flemish in Wallonia).
Relations
between the German and French communities on these matters remain cordial.
Although the Belgian system may have begun with high principles of flexible
territories and soft borders, over time the unhelpful
concept of the hard
language border has re-emerged. Only in Brussels has the concept of the soft
border been retained in relation
to cultural matters. Brussels citizens can
belong to either the Flemish or French community and community matters of an
institutional
nature are handled jointly between elected representatives from
the two communities. One side-effect of the application of soft borders
in
Brussels has been the artificial boosting of the Flemish Community. Although
Flemish speakers are very much the minority (estimated
at less than 10%), the
number of pupils attending Flemish schools is much higher. The reason is
that
the Flemish Community is perceived as offering a higher standard of
education and as a result French speakers register as Flemish.
The other notable attempt to resolve community conflict through the application of soft borders is to be found in Northern Ireland. The Northern Irish Assembly utilises a high degree of consociationalism's to ensure the representation of all communities and political hues in the executive, but of more interest here is the use of cross-border institutions to deal with particular policies. Strands two and three of the Belfast Agreement established a series of institutions which tied the newly formed Northern Irish institutions of government to those in the Irish Republic and the wider British Isles respectively. Strand two created a North—South Ministerial Council, which meets twice yearly in plenary session (with the Republic represented by the Taoiseach and Northern Ireland represented jointly by the First Minister and Deputy First Minister). In addition, regular subject-orientated meetings are held in areas of cooperation between the two territories. Wider cross-border cooperation continues at the administrative level under the broad supervision of the Ministerial Council. Despite difficulties, in particular caused by the Democratic Unionist Party ministers' decision to boycott these institutions and attempts to exclude the Sinn Fein ministers, all-Ireland policies on subjects such as education, health, agriculture and transport have continued to develop.
Beyond this, strand three of the Belfast Agreement established the British Irish Council (known colloquially as the Council of the Isles). In addition to representatives from the Irish and UK member-state governments, this body also includes representation from the devolved regional executives of Scotland, Northern Ireland and Wales, and the governments of Jersey, Guernsey and the Isle of Man. Although still in its early stages, this institution shows the recognition (for the first time) that certain issues need to be discussed on a British Isles basis. Initial subjects for discussion include drugs policy, environment and
15 Consociationalism favours decision-making by consensus. In practice this
will mean the guaranteed involvement of representatives from particular
social, political or ethnic groups in the decision making
of the
state.
18 Yearbook of New Zealand Jurisprudence Vol 5
transport.
Wider issues such as agriculture, tourism and greater-EU matters are all
earmarked for further discussion in the near future.'6
The above extreme examples are unique to their situations but they represent the vanguard of a wider movement in European decision-making that has discarded the hard national boundary as the norm for territorial policy-making. In tandem with the growth of the regional tier and the European institutions, the borders between and within states are softening. The problem is that although such developments have occurred on the ground, the impact of such changes on the wider governance of Europe has not been recognised. This leads to both conceptual and practical problems for European governance. In essence the governance of Europe continues to be discussed in terms of the sovereign nation-state paradigm. As a result of this, our conceptual understanding of government in Europe is as flawed as the institutions that govern the continent.
The concept of sovereignty in a regional Europe
The softening of national borders and the stretching of sovereignty between European and regional levels of governance has led to practical changes in studying governance in Europe. When one examines a particular policy one can no longer do so on a purely national level. For example, one cannot compare the education systems of Germany and Spain. Although there are significant similarities across the regions within these systems, significant differences remain. In the example of legal education in Germany, for example, the regulations for Law degrees differ between lander. This can have a significant impact on the student wishing to study there (or the university academic wishing to establish student exchanges). Within Spain, language instruction varies markedly between regions and in Catalonia in particular, the Lleir de Catala (Catalan Language Law) has proved controversial."
Despite these variations, academics and policy makers, particularly in the United Kingdom tradition, continue to make the error of examining
16 Hazell, R 'Intergovernmental relations: Whitehall rules OK?' in Hazell, R
(ed) The State and the Nations: The First Year of Devolution in the UK (London: Imprint Academic, 2000), 168.
Roller, E 'The 1997 Llei de Catala: A Pandora's Box in Catalonia?' (2001)
11:1 Regional and Federal Studies 39-54.
`nations'. A recent example
saw the UK government reporting favourably on the development of a privately
funded 'Spanish' hospital
as a model for the UK. In fact the health service in
Spain is only `Spanish' amongst some regions, and significant policy variation
is to be found depending upon the political persuasion of the particular
regional giunta. Even within the UK it is noticeable that the British
parties (particularly the Labour and Conservative parties) are unable to
distinguish
between devolved and non-devolved powers. In the recent UK election
campaign, the major parties all promised to deliver policies
that are in fact
under the authority of the various devolved authorities.'8
Ironically, this failure to recognise the practical impact of the regional revolution has not been found amongst those parties that continue to champion a nationalist view of European politics. The mainstream micro-nationalist parties in the Basque country, Catalonia, Wales, Scotland and Flanders no longer focus on achieving independence in the traditional sense of the word. The goal is no longer nation-state status but 'Independence in Europe', to use the phrase coined by the Scottish National Party. In practice, this means achieving a seat at the top table of European decision-making (the Council of Ministers). This is what 'sovereignty' means in modern Europe. Interestingly, this 'new' and softer form of state sovereignty appears to appeal to voters more than previous incarnations of micro-nationalism. This has been particularly true in Scotland, where the Scottish National Party enjoys far greater support today than at any time in its history. Perhaps this new approach to the issue of micro-nationalities appears more coherent, rational and safe than those proposed by such parties in the past.
The end of Britain?
The result of the softening borders under pressure from the regional revolution has not been a 'Europe of Regions', to utilise the overused phrase of the European movement. The region has not replaced the member state as the primary unit of governance within the EU; neither is there any evidence that regions will do so in the foreseeable future. Nevertheless, the regional revolution has had a serious impact on the governance of Europe. What we have today may not be a Europe of
18 Constitution Unit Monitor (University College London, March
2001).
20 Yearbook of New Zealand Jurisprudence Vol 5
regions, but
it clearly is a Europe with regions. As such, the hard-bordered
nation-state is no longer the paradigm of government. Policies are no longer
decided purely on
a national or international basis but on a variety of
territorial levels primarily, but not exclusively, comprising the European
Union, the member state and the region.
Those who advocate a 'Europe of Regions' thesis fail to recognise the lack of interest in such a thesis amongst the mass of Europe's population.'9 The state and the nation it claims to represent retain an important role in the lives of European citizens. That this role has changed is beyond dispute, but outside the extreme periphery there is no interest in the region as the primary unit of governance. What has been expressed is the desire for a form of democratic government between the national and the local level, which will undertake significant policy decisions. This is a Europe that includes regions as a part of a soft-bordered future, but does not solely comprise them.
The devolution of power to the constituent parts of the United Kingdom has spelt the end of Britain in the traditionally understood sense. In common with most western European states, the development of the regional tier has led to policy divergence in the UK and the softening of the nation-state paradigm. This process will be enhanced should the Labour Government's commitment to regional reform in England be realised.
The problem remains that the development of a Europe with regions has not been accompanied by the recognition that such an event has taken place. Thus the traditional institutions of the nation-state continue to be the norm in Europe, despite the fact that they are inappropriate for a post-national world. If regions replaced nation-states entirely, the existing institutions might work, but given the unlikely nature of this occurrence, our institutions must be adapted to a soft-bordered future. As yet, such adaptation has not taken place. The institutions of European governance in the twenty-first century appear wedded to the nation-state myth.
19 In reality the Europe of Regions 'thesis' was a convenient punch-bag for
academics, and outside the confines of the most ardent pro-European
campaigners it was never really a seriously articulated idea.
The evidence
from the most extreme examples of the soft-bordered phenomenon in Belgium and
Northern Ireland is that the softening
of borders leads to increased levels of
bureaucracy. In Belgium, the regional government in Brussels still retains a
Ministry of
Agriculture despite the fact that at its inception, it had
responsibility for six farms, a number that has now been reduced to one!
One
ministry per farm seems a slightly excessive degree of accountability. These
systems have also become extremely party dominated
with power migrating away
from the legislature and towards the executive. The nature of such systems,
which rely upon cooperation
and avoidance of conflict, also means increased
complexity. Confusion and dissolution have plagued the Belgian system.
In the UK, the devolved institutions of governance also reflect traditional nation-state concepts of the role such institutions play. Regional institutions tend to be miniature versions of their national counterparts, yet these regional institutions perform a very different role from their national cousins. Although legislative capacity may be an important part of the remit of a devolved government, the increased softening of policy borders means that cooperative forms of policy-making are now dominant.
The Scottish Parliament, for example, is designed as a legislative chamber and its ability to hold the executive to account in the secretive world of intergovernmental negotiations must be seriously questioned. In Germany, the increasingly cooperative nature of German federalism has left the Landtag isolated and unable to offer a meaningful method of holding the executive to account. In both cases, the legislative branch is often faced with a fait accompli from such negotiations. Its only option, if it has one at all, is the 'nuclear one', of rejecting an agreement outright. Traditional institutions of representative governance are particularly poor at holding cooperative policy-making to account. As the borders of the nation-state soften and cooperative methods become the norm, the accountability and scrutiny of these decisions can only diminish.
The situation is not helped by the confusion of powers and responsibilities
that accompanies soft-bordered concepts of governance.
The ability of national
governments to control regional policy through informal means (particularly
through the use of financial
incentives and punishments) makes the confusion all
the greater as the true root
22 Yearbook of New Zealand
Jurisprudence Vol 5
of a policy decision may not be clear to the
electorate. It should be noted that most of these problems apply increasingly to
the
national level of government in Europe, as well as the regional. The
dominant mode of governance across Europe is now both executive
and cooperative.
This is a direct result of the softening of borders. If such government is to
remain democratic and accountable,
the traditional structures of governance and
accountability must adapt to these new realities.
Beyond the national level, the member state continues to dominate as the body of representative government. Within the EU, the fifteen member states are the gatekeepers of European policy. All significant policy is delivered through the Council of Ministers, a body that does not reflect the true source of policy choices in Europe. Regional governments may be elected to deliver and develop policy in areas such as fisheries or transport, but when it comes to the European level, the decisions are, with few exceptions, still taken by national ministers. Ian Harden' s argument that the representative element provided by the member-state governments in the Council of Ministers can, with some modification, provide the democratic reservoir at the European level has some pragmatic merit but it does not answer the central problem.2° Failing to recognise the reality of regional government increases the democratic deficit at the heart of Europe.
As Europe heads towards its single currency and regional democracy takes hold even in the last stronghold of the unitary sovereign state, the writing for the traditional nation-state is clearly on the wall, at least in Europe. To return to the title of this paper, we are currently witnessing the end of Britain, as we know it. This is a fact that may only become clear as time passes. As Bogdanor has said, in the absence of a 'pathological' event the devolution settlement is secure, at least in the legislative sense. In common with other countries in the EU, the nature of territorial governance in the UK has changed fundamentally.2'
20 Harden, I 'The Constitution of the European Union' [1994] P.L. 609-624.
A complete solution to the regional question may only arise in
the event of the European Union formally recognising itself as a federal
entity.
Such a development, recognising as it does the end of national sovereignty,
would allow the development of institutions and
structures that truly reflect
the reality of governance on the European continent in the twenty-first century.
This could include
the incorporation of the regional tier into the governance
structure of the EU. However, despite the best efforts of the European
Convention, wholesale constitutional reform is unlikely to be attempted in the
foreseeable future. The myth of the nation-state continues
to dominate
discussion of governance in the EU. Until Europe wakes up to the death of its
dubious legacy to the world, the myth of
the nation-state will continue to haunt
democratic responsibility and accountability in the new Europe. For as long as
the shadow
of the nation-state continues to cast itself over discussion of
governance in Europe, the disenchantment of Europe's population with
its
institutions of government is unlikely to improve.
24 Yearbook of New
Zealand Jurisprudence Vol 5
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