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June 05th 2014 print

James Allan

Floundering On A Port Tack In Lisbon

'Keep moving it to the left' is pertinent advice when settling the fate of a fine bottle, but it continues to prove poor policy in a Europe beset with debt, unemployment and charity cases masquerading as national economies

euroLast week I had to fly to Lisbon, Portugal, for a US/EU conference on judicial activism.  It was a very long way to go for only a few days, but I had never been to Portugal and the conference had some heavy-hitters.   Plus, I did manage to fit in a half day’s sight-seeing in Lisbon, a really beautiful city.

First off, the non-law stuff.  I got to drink some very good porto, what we call ‘port’.  This is by far Portugal’s biggest alcohol export, most of it going to the UK.  And in the UK, as many will know, once the port is decanted and on the table it moves left and doesn’t stop till it’s finished.

And that last phrase isn’t the worst short description of Portugal itself over the last dozen or so years.  Things aren’t good there.  Not as bad as Greece, true, but then in the words of  Monty Python’s John Cleese, his tone dripping with sarcasm, ‘that’s high praise indeed’.  At the elite University of Lisbon law school, the faculty members had just taken an across-the-board 20% pay cut, or at least those who still had jobs.  Meanwhile, unemployment rates are bleak — maybe not up to Spanish and Greek levels, but chilling for someone from Australia.

So maybe the blame should fall not so much on countless big-spending governments which build up massive debts they must know will have to be paid by their kids and grandkids?  Or maybe it should fall on the plurality of voters there who couldn’t find the gumption to vote for any political party that told them the Emperor was wearing no clothes and that, yes, they would have to cut spending and stop believing in free lunches.  (And here we can wonder if Australia is any better, when an Abbott government produces a weak as you-know-what budget, with its bare minimum of spending restraint, and the vested interests of the ABC and others still manage to get far too many people to believe that Australia can persist with the rich world’s highest new-spending trajectory as though the disaster countries of Europe did not themselves start at one point with pretty healthy public finances.)

Or maybe the preponderance of blame for the massive unemployment and insipid economic growth can be sheeted home to the political class that insouciantly took Portugal into the euro currency, a disaster whose consequences are playing in slow motion across much of the EU, in no way limited to Portugal alone.

I don’t know.  Suffice to say that I didn’t come away from there a Pollyanna about the EU’s short term future.  Indeed, I was there the night of the EU elections, and the hotel had the BBC World Service.  So I watched as Britain’s UKIP – the party that wants out of the EU – did so spectacularly well.  I was cheering them on because the EU, to my way of thinking, is a sovereignty-gobbling, democracy-crushing behemoth.  It is a top-down project that systematically attempts to give the voters of Europe as little say as possible – on the Lisbon Treaty, the euro, the whole panoply of EU institutions.  This is the supranational state that so many legal and broadcasting and Big Government elites just love.  Only a dozen-or-so years ago it was being held up as the way of the future.  What a joke that is today!

Actually, on the flight back I thought to myself, ‘Thank God I live in Australia and not in the EU’.

As for the legal conference on judicial activism, let’s just say that this is a problem throughout the democratic world.  These unelected top judges travel around the world to judicial shindigs, where theymeet with their confreres and start wondering why they shouldn’t be doing, say, ‘proportionality analysis’ (as our High Court is starting to think it should, the actual text of our Constitution notwithstanding).   They think that ‘being constrained in the results they can reach’ means that the individual judge looked inside his or her heart and felt constrained – as opposed to adopting an approach to interpretation of legal texts that imposed external constraints, not inward-looking ‘felt’ constraints.

Actually, on the topic of unelected judges getting too big for their boots, parts of Europe (leave aside the awful European Court of Human Rights) look pretty good.  In Denmark and much of Scandinavia they have a ‘clear mistake rule’ that must be surpassed before the top judges will invalidate statutes.  The result is that, in Denmark, that has happened opnly once in the past century or so.  I’m pretty sure that sort of restraint would not have seen our top judges ‘make up’ the implied freedom of political communication, or strike down statutes about when incarcerated prisoners can vote, or when the electoral rolls will close.

In fact parts of the civil law world, leave aside a chunk of other problems, look at Canada, the US and now the UK, and think their judges are self-styled philosopher-kings.  Perhaps this view is most evident in France.

Now it’s not often that I say ‘My God the French are spot on’ but here they are.

James Allan is Garrick Professor of Law at the University of Queensland. His new book, Democracy in Decline, has just been published by ConnorCourt and can be ordered by clicking here