“Written Constitutions – experiences and challenges.”
A blog on the European Circuit’s latest event, by Abigail Holt & Athena Markides
Brenda from Bristol may have put it best: “not another one” is perhaps the only reaction to a forthcoming general election ever to have gone viral.
This is a nation ostensibly tired of politics. Tired of experts. Tired of being made to make difficult decisions. So is this is a sign that we need a written constitution? And if we do, is now the right time for one?
These are complicated and highly charged questions, and on the 4th May the European Circuit was privileged to hear these points addressed by some of Europe’s foremost authorities on the topic.
Lord Mance chaired a panel comprised of Sir Jeffrey Jowell QC, Professor Stefan Vogenauer, Professor Eoin Carolan and Professor Alison Young, each of whom spoke on the subject “Written Constitution – Experiences and Challenges” before taking questions from the audience. In the best legal tradition, the speakers were split and individually persuasive in their views.
It was hard not to sympathise with Sir Jeffrey Jowell’s assessment that a written constitution could offer a form of clarity, authority and accessibility which our current system does not. UK lawyers, let alone the public at large remain unfortunately but understandably ignorant of the jurisprudence of constitutional law. This might be otherwise if the starting point were a slim paperback with which every school child – and indeed every politician, newspaper columnist and lawyer – could be provided.
Sir Jeffrey Jowell also emphasised that a written constitution could be used to entrench and safeguard commonly held values and those rights which we consider to be inalienable. It would provide a framework for decision-making, rather than being an instrument of decision making itself, and thereby subject to political imperatives. In this regard, Sir Jeffrey characterized a written constitution as “a tie imposed by Peter when sober on Peter when drunk.” At a time when Peter appears to be poking at his left ear and proclaiming that he has found his nose, it is tempting to lock the fine china out of his reach.
Professor Vogenauer offered his insights regarding the German constitution. He noted that the German consensus was that their written constitution was a source of national pride and a “good thing”. Professor Vogenauer acknowledged, however, that a written constitution is not a panacea. It can only ever be as good as its contents and those who preserve and apply them. It is easier to protect human rights by restricting those actions which undermine them than to legislate for the provision of social rights. A successful written constitution might therefore disappoint the aspirations of its proponents. Professor Vogenauer concluded that a cost-benefit analysis ought properly to be incorporated within a written constitution to ensure that it was able to change and remain flexible and responsive, whilst simultaneous safeguarding those rights which were contemporaneously considered sacred.
Professor Carolan adopted the theme of practicality, emphasizing the limits of language as a tool to uphold uplifting public values and reiterating that drafting in loose language can be expensive for governments. In so doing, he reminded the room that language alters over time, often unpredictably; a written constitution would need to be sufficiently flexible to avoid it becoming a tool of oppression. Professor Carolan also highlighted the perceived lack of trust in experts, elites and public authority figures in the UK at present. As perhaps the most natural proponents of a written constitution, these figures would be unlikely to receive a welcome reception. A written constitution perceived as illegitimate by the majority- or even a significant minority of, say, 48% – is arguably even worse than the current system. There are significant logistical challenges in organizing the consultations which would be a necessary precursor to a written constitution: enshrining the status quo is not a rallying cry for concentrated political action. The possibility of fomenting change might garner more support, but it is far from clear that that those competing objectives could solidify into support for any single set of proposals.
Professor Young reinforced the view that “elites” are a damaged currency at present. National divisions create the real risk that advocates for constitutional change will find their views discounted on the basis that they are either a “Leaver” or a “Remainer”. As campaigning becomes increasingly partisan and the electorate is asked to define itself as much by who it opposes as by who it supports, it is hard to define the fundamental values which might form the basis of a written constitution. It was also easy to sympathise with Professor Young’s view that Parliament is rather preoccupied at present, and would be unlikely to welcome significant constitutional debate with the care, time or investment it deserves.
I could not help but share in Sir Jeffrey’s enthusiasm for the benefits of a written constitution. But as the talks progressed, I found myself increasingly convinced that at this precise moment in time, we would be unlikely to reach agreement on any constitution worth having.
It was a recurrent theme amongst the speakers that countries adopt written constitutions following a tipping point: some moment of fundamental change, typically war or revolution. No one can deny that the United Kingdom is facing significant constitutional upheaval. No one can deny that there are advantages to a written constitution. The question is whether we should wait for Peter to sober up, or whether we need to act now before he finishes the bottle.
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The European Circuit Annual Conference – Athena Markides
Earlier this year, I was asked whether I would like to attend the European Circuit’s annual conference on behalf of the Young Barristers’ Committee.
It was a tempting prospect.
I have long had an interest in EU law. The opportunity to visit Dublin and watch a line-up of EU law heavyweights discussing the most important developments of the day (or indeed of the decade) seemed too good to miss. Plus, attendees were being offered the opportunity to tour local courts, with the entire conference being rounded off with dinner at the Honourable Society of King’s Inns. I had never been to Dublin before, and this seemed as good a time as any to head over. So I agreed.
“Great,” I was told. “Oh and by the way, we want you to give a short talk. Something about the challenges for juniors looking to develop an international practice. That’s all right, isn’t it?”
As a very junior barrister with a common law and commercial practice, I felt well equipped to discuss those challenges. More difficult, however, would be any discussion regarding achievements. Yes, I have an LLM and a keen interest in EU law. Like many others, my practice includes some elements of ‘proper’ international work – advising on conflicts of laws and involvement in a couple of international arbitrations – but I’d still be an obvious outsider, wouldn’t I?
I needn’t have worried – I had a fantastic time.
Conference organiser, Gerard McDermott QC, was the first to put me at ease, telling me how he had successfully incorporated international elements into his personal injury practice. This wasn’t something which had been handed to him on a plate by his Chambers (in fact it hadn’t even been on the menu); he had identified this as an area of particular interest and then worked solidly to turn it into a cornerstone of his practice.
This was a theme which resonated throughout the conference. Covering an enormous range of topics – from court reform across Europe, to cross-border traffic accidents, appellate advocacy in the US, and a perspective from the Irish judiciary – the conference well-illustrated the international elements relevant to a range of practice areas. The conference organisers also had at least one eye firmly on the future, with talks about the online court and the increasing use of technology in dispute resolution.
But above all, this conference stood out because of the community which attended it: friendly, welcoming and very interesting. In common with the best smaller conferences, attendees left buzzing with ideas and information (and probably champagne too…) but also with the sense that foundations had been laid for potential future friendships as well as working relationships.
The European Circuit aims to support and facilitate the exchange of experience among lawyers with a cross-border practice. And the conference absolutely achieved that aim. It was fascinating to compare my own experiences as a junior barrister with those of juniors from the Northern Irish and Republic of Ireland bars. My contemporaries and I may have concerns about attracting work, pleasing our clerks and getting paid on time, but this is nothing to the experience of our self-clerking counterparts across the Irish Sea.
The conference was also attended by a contingent from the American Counsel Association and I had a great time learning more about US insurance law, the American judiciary and how juries are used to set damages in civil trials in Connecticut.
And this fed into yet another broad theme: that of openness, awareness and of a willingness to embrace progress. Our domestic legal system is on the brink of significant change. Brexit is an obvious but not exclusive harbinger of a new order: the Joint Vision Statement produced by the Lord Chancellor, Lord Chief Justice and Senior President of Tribunals this September is a radical manifesto on any account.
It is at times like these that I think all practitioners benefit from an appreciation of the range of dispute resolution mechanisms which are out there and operational across the world. In terms of personal and career development it is obviously vital to be open-minded but also well-informed. For the young practitioner, conferences like this one offer a great chance to meet like-minded (and often better-minded) people, to hear about their experiences in work and in life more generally and to gain a broader perspective.
All in all, the conference was a terrific two-day event. It has galvanised me to get more involved with the Circuit and to keep developing the international elements of my practice. I also found the conference happily uplifting. At a time when people may be feeling less international and more divided, it was a striking reminder that we can and do benefit from an international outlook.
If you are interested in becoming a member of the European Circuit, please do not hesitate to contact me at [email protected] The next annual conference will take place in Brussels – look out for details on the European Circuit’s website http://www.europeancircuit.com/