Federal reforms in Austria: is now the time to overcome gridlock?

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The promise of ‘change’ was key for the Austrian Christian Democrats’ landslide victory in last year’s general elections. Recent sub-state polls, however, have perpetuated the influence of incumbent governors – and their power to veto the new government’s plans to reform Austria’s federal system. Patrick Utz analyses the links between current electoral dynamics, the country’s corporatist heritage and the potential for federal reforms in Austria.

When in October 2017 the Christian Democrat ÖVP and their 31-year-old leader, Sebastian Kurz, won their first federal elections in 15 years, they did so based on the promise of profound ‘change’. This vaguely defined agenda first materialised when Kurz formed a coalition with the far-right Freedom Party (FPÖ), which brought the long-standing ‘Grand Coalition’ between Social Democrats (SPÖ) and Christian Democrats to an end.

A central element of the new coalition agreement is an administrative reform, which may have far-reaching implications for the country’s federal structure. Unsurprisingly for a state that has been described as a ‘federation without federalism’, the promised reforms will most probably lead to further centralisation at the expense of the nine constituent Länder. Rather than the direction of change, the puzzling question about Kurz’s plans is whether they will occur in the first place.

Deadlock through informal vetoes

Austria’s peculiar system of cooperative federalism, along with the country’s strong corporatist tradition has long been immune to noteworthy changes. In spite of the Länder’s very limited self-rule and quasi-negligible formal mechanisms of shared-rule at the centre, regional political elites have long been able to have their say in federal decision-making. The most visible mechanism of these informal forms of regional interference is the ‘Conference of Governors’: a regular gathering of the nine Länder’s heads of government with no legal status but with very effective veto powers concerning federal legislation. Subtler forms of political influence, particularly through party-internal channels, might have been an even more powerful tool in the hands of regional elites. Continue reading

How Italy experienced (yet another) electoral system and why it may soon change it again

download.000lp (1)ap (1)This year saw the Italian electorate vote under a new electoral system for the first time. However, this is the fourth time in 25 years that legislative reform has been passed by the Italian parliament. Gianfranco Baldini, Andrea Pedrazzani and Luca Pinto discuss how the new law came about and analyse how it operated in practice. 

On 4 March 2018, Italy went to the polls using the fourth new electoral law (the Rosato law) approved since 1993, when Italy created a mixed-member majoritarian system selecting 75% of MPs in single-member constituencies, and the remaining 25% via proportional representation. The Mattarella Law, named after Sergio Mattarella, who now serves as President of the Republic, helped to bring about a bi-polarization of the party system along two main centre-right and centre-left coalitions. This year, no coalition or party obtained an absolute majority of seats in parliament. More than two months has passed since the vote and no government has yet been formed. If and when one emerges, a possible consensus could rise on a new electoral law, before calling fresh elections to break the deadlock.

Matthew Shugart has assessed the first effects of the new electoral law and here we analyse the main reasons behind this continuous change of provisions, some of the effects with regard to party system fragmentation, and two controversial aspects of the Rosato law, namely the provision for multiple candidacies and gender parity.

Why so many reforms?

The record number of electoral reforms over the last quarter of a century is due both to partisan reasons and to some Italian peculiarities. Among the latter, two (intertwined) factors stand out: the uncertain path of institutional reforms over the same period and the lack of institutionalisation of the party system that emerged after the 1994 election. Continue reading

The Good Friday Agreement at 20: what’s next for Northern Ireland?

Alan_Rialto2 (1)Yesterday, in the first of two blogs on the Good Friday Agreement, Alan Whysall discussed where the Agreement had gone wrong and the benefits it has brought Northern Ireland since it was signed in April 1998. In this post, Alan looks at the future of the Agreement, a document he was involved in negotiating and implementing during his time as a civil servant at the Northern Ireland Office.

As conflict with the EU mounted over the Northern Ireland issue, some pro-Brexit voices in Great Britain began to argue that the Good Friday Agreement (‘the Agreement’) had ‘run its course’. They proposed no alternatives, however, for a position that broke a 20 year consensus in mainstream British politics.

Few in Northern Ireland, beyond established ultras, have gone so far. But some, predominantly unionists, argue in the short term for direct rule; some for changes to the mechanisms of the Agreement. There is also increasing talk of a border poll opening the way to a united Ireland.

Direct rule

Some see direct rule from Westminster as a good government safety net that Northern Ireland can fall back on, as in the past. From one perspective, it is remarkable that has not happened. Extraordinarily, no one has been in charge of government for over a year, as though having government is discretionary. The civil service carries out the administration on the basis of established policy, in a legal quagmire.

Nonetheless the British government has resisted the temptation to reinstate full-blown direct rule. This is understandable, as its own role would be seriously contested, given its dependence on the DUP for a Commons majority; so would the role the Agreement foresees for the Irish government. Most damagingly, it might be seen as the end of efforts to revive the institutions, unleash further negativity and probably drive the best people from politics. Direct rule, once turned on, is hard to turn off.

The present situation cannot endure indefinitely. At some point, much more government will have to be done. Continue reading

The Good Friday Agreement at 20: what went wrong?

Alan_Rialto2 (1)The Good Friday Agreement (also known as the Belfast Agreement) is 20 years old today, but recent events in Northern Ireland have shown that power-sharing has proven a difficult exercise. Alan Whysall, who was involved in the negotiations that led to the Agreement as well as its implementation, examines what has gone wrong since the Agreement was signed. A second blog, to be published tomorrow, will discuss what can be done to get the Agreement back on track.

Today marks the 20th anniversary of the signing of the Good Friday Agreement, (‘the Agreement’),  but the system of power-sharing government it established in Northern Ireland has not functioned for over a year. It was widely seen in Britain, as elsewhere, as a significant act of statesmanship, supported by both main parties. But it now appears at risk, as the Irish border becomes a critical issue in the Brexit negotiations.

What has gone wrong?

The Agreement was a political construct to underwrite the ending of a conflict and address the divided politics of a divided society. Progress in those three areas – conflict, politics and society – is interlinked. There was a hope that the division would reduce. In society it has, to some degree, though the progress is now in danger; in politics, less so.

The Agreement covered a wide range of matters besides devolved power-sharing government, but the main focus has been on that issue. The institutions were troubled from the start. Power-sharing government was not established until late 1999. Dogged by unionist reluctance to be in government with Sinn Féin while the IRA continued in being, it collapsed in late 2002. Five years’ direct rule followed, during which the IRA declared its war over and decommissioned weapons, and political negotiations culminated in the St Andrews Agreement of 2006 (with minor changes to the Agreement institutions). Re-established in 2007, the institutions functioned for 10 years.

Sinn Féin pulled out of the Executive in January 2017 citing lack of ‘respect’ from the DUP, essentially around Irish identity. Its key demand became an Irish Language Act, much debated though little defined by either proposers or opponents. Political negotiations appeared to be leading to agreement in February this year, when the DUP abruptly pulled out, its base apparently unhappy at the prospect of the (rather modest) language legislation proposed in the draft text.

DUP figures now speak of restored devolution being impossible this year; no further negotiations are in prospect. The new Secretary of State, Karen Bradley, has brought forward legislation at Westminster on the Northern Ireland budget.

Since last January, opinion in Northern Ireland is much polarised; the rhetoric of the parties, and to some degree the print media, has plunged into a partisan downward spiral. The spirit of partnership that was once to the fore in politics, and at times won votes, is withering, with few vocal proponents in the political realm. Continue reading

Monitor 68: A constitution in flux

The latest issue of Monitor, the Constitution Unit’s regular newsletter, was published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has seen the EU (Withdrawal) Bill pass from the Commons to the Lords; the failure of talks in Northern Ireland; and a significant government reshuffle. Abroad, Ireland is considering a permanent constitutional change and Japan has seen a constitutional first as its current emperor confirmed he is to abdicate. This post is the opening article from Monitor 68. The full edition can be found on our website. 

The UK is experiencing a period of deep constitutional uncertainty. In at least four key areas, structures of power and governance are in flux. Screenshot_20180308.210141 (1)

The first of these, of course, is the nature of the UK’s future relationship with the European Union, to which the Brexit negotiations will shortly turn. The degree to which the UK continues to pool its sovereignty with other European countries depends on the form of that relationship: how far, and on what issues, the UK continues to adhere to EU rules, align closely with them, or follow its own separate path. Theresa May set out her most detailed proposals yet in a speech at Mansion House on 2 March, advocating close alignment outside the structures of the EU Single Market and Customs Union. On 7 March, the President of the European Council, Donald Tusk, published draft guidelines for the EU’s position. As before, this emphasises ‘that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking.”’ What deal will emerge from the negotiations is entirely unclear.

The government’s preferred path will face stiff resistance in parliament too. In late February Jeremy Corbyn signalled that Labour wants a UK–EU customs union (an issue also central to the conclusions reached by the Citizens’ Assembly on Brexit). Consequently the government now risks defeat on an amendment to the Trade Bill pursuing the same objective, tabled by Conservative backbencher Anna Soubry. Beyond that, an amendment to the EU (Withdrawal) Bill passed in the House of Commons in December guarantees that the deal between the UK and the EU agreed through the Brexit negotiations will need to be endorsed by an Act of Parliament in the UK. Brexit’s opponents are increasingly vocal and organised, and occupy a strong position in Westminster. The odds remain that Brexit will happen, but that isn’t guaranteed. Continue reading

Brexit and the sovereignty of parliament: a backbencher’s view

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Brexit is a constitutional, legal, and political challenge of a size the UK has not seen in decades and will have consequences that are both uncertain and long-lasting. In this post, Dominic Grieve offers his distinctive perspective on Brexit, discussing the concept of parliamentary sovereignty, the role of international courts in UK law, and the more troubling aspects of the Withdrawal Bill itself. 

The EU and the sovereignty of parliament

My Brexiter colleagues have in varying degrees signed up to the view that EU membership undermines the sovereignty of parliament in a manner which is damaging to our independence and our parliamentary democracy. This certainly fits in with a national (if principally English) narrative that can be traced back past the Bill of Rights 1688 to Magna Carta in 1215.  This narrative has proved very enduring; it places parliament as the central bastion of our liberties.

But it can also be used merely as an assertion of power, particularly when the executive has effective control over parliament. It is with that power that parliament enacted the European Communities Act 1972, which gave primacy to EU law in our country. It was parliament that chose to allow what is now the Court of Justice of the European Union (CJEU) to override UK statute law, so as to ensure our conformity with EU law in all areas in which it has competence.

The justification for requiring that supremacy was that without it, achieving adherence to the treaties and convergence between member states in implementing EU law would be very difficult. This was not an unreasonable argument; but it is hard to avoid concluding that the supremacy of EU law lies at the root of the feeling of powerlessness felt by sections of the electorate and reflected in the referendum result. This feeling has been encouraged by the habit of successive UK governments to hide behind decisions of the EU as a justification for being unwilling to address problems raised by its own electors. But where the lawyer and politician in me parts company with the views of my Brexiter colleagues is in the extent to which they appear oblivious to the extent to which parliamentary sovereignty is not – and never has been – unfettered. Continue reading

Opinion polls and constitutional issues: the case of Chile

The complex relationship between public opinion and constitutional issues is highlighted by the case of Chile, where a presidential election will take place this Sunday. Polls appear to suggest low public interest in constitutional issues, despite a ‘constituent process’ pushed by the current Bachelet government. Nonetheless, polling also indicates that the public is overwhelmingly in favour of constitutional reform. Alberto Coddou Mc Manus argues that polling is an important source of information for constitutional debates, but that findings should be critically assessed rather than taken at face value.

In general, opinion polls ask about our political preferences within established political systems. They ask us to express our political preferences or attitudes regarding the range of political options that the current constitutional system allows, either in the form of political candidates, ideas or reforms. In the US, opinion polls on constitutional matters have been fundamental for the analysis of the jurisprudence of the Supreme Court, either for predicting judgments or for explaining its reasons. Moreover, opinion polls are an important instrument for ascertaining the degree of support, political approval, or legitimacy that a certain political system garners among the population. However, opinion polls are also an important tool for asking people hypothetical questions, such as the ones that emerge from the exercise of constitutional powers. Indeed, opinion polls can be an interesting device for investigating the possibilities that may derive from exercises in constitutional imagination.

In this scenario, the relationship between opinion polls and constitutional issues is multifarious: on the one hand, they can be an interesting measure of the degree of legitimacy of an extant constitutional arrangement; on the other, they can inquire into the possible outcomes or possibilities that may be open under alternative constitutional frameworks. In the middle, we can find those techniques of social research that attempt to capture the degree to which issues of legitimacy may result in positive dispositions towards creating new political institutions, or crafting a new institutional arrangement for addressing political issues. In countries not at risk of experiencing violent political conflict, or that are not close to institutional collapse, the different relations between opinion polls and constitutional matters constitute an important source for broader political analysis.

In the case of Chile, opinion polls reveal a complex relationship between public opinion and constitutional issues. In the face of a presidential election that will take place on November 19, the relevance of constitutional issues for the political agenda is a matter of debate. Although the country is undergoing a ‘constituent process’ pushed by the government of Michelle Bachelet, which during 2016 implemented a consultation process (which included self-convened meetings and open citizens’ assemblies organized by the government) for the people to discuss what constitutional issues should be included in a new constitution, there has been scant ‘popular’ mobilisation around the issue after the end of that consultation process in August of 2016. We are not witnessing the degree of popular mobilisation and exchange of opinion that would be required for a ‘constitutional moment’, according to Bruce Ackerman. Chile has one of the lowest rates of political participation around the world, and it is part of a select list of countries where the fall of political turnout has been the sharpest since 1990 (a list which includes Congo, Libya, and Madagascar, countries which, unlike Chile, have experienced recent and serious political conflicts). According to a recent report by the United Nations Development Programme (UNDP), political disaffection and the loss of popular trust in political institutions should be a warning sign for Chilean democracy.

Continue reading