Introduction: two spaces of subsidiarity?

ABSTRACT

Scholarship on subsidiarity conducted since the nineteenth century has developed two strands of interpretation suggesting competing models of social organisation as far as the potential location of decision-making power is concerned. While this intellectual effort has mainly concentrated on political experiences in continental Europe, and gained further traction with the principle’s recognition in European Union law, the institutional architecture of Commonwealth countries has experienced relative neglect. This collection, however, examines the debates around competing ordering principles with evidence coming from operational problems of Westminster style democracies in four world regions, and considers how a multi-disciplinary perspective can guide comparative analysis.

KEYWORDS:

• subsidiarity
• comparative analysis
• multi-disciplinary
• decision-making
• case-studies
• Westminster democracies

As the collection of essays in this special issue will show thinking around subsidiarity is of a bifurcated nature. In its theoretical dimension and historical development since the nineteenth century the principle of subsidiarity has evolved along two distinct strands of interpretation. In the Protestant Calvinist tradition main emphasis rests with a horizontal ordering of associated spheres of sovereignty, whereas in Roman Catholic thought priority is given to a vertical hierarchical ordering of diverse social units. Nevertheless, both conceptions share a common root in Christian theology and the ambition to find a middle road between an overly individualistic society and an excessive reliance on the socialist collective (Weinberger, 2014, p. 50; Woods, 2005, p. 2).

Over time the secular application of Catholic and Protestant ideas has led to diverging political manifestations. In the vertical system of coordination social needs should be addressed at the ‘lowest’ possible level, even if support from the ‘higher’ institutional level is always available. By contrast, in a horizontal system of coordination, there is more emphasis on the diverse nature of social arrangements explicitly avoiding any particular ranking that is a reflection of size, power or status. The appeal of this distinction, however, goes frequently beyond a mere understanding of social order and finds increasing recognition for the purpose of policy analysis.

One way to utilise subsidiarity in this way is to unite both perspectives by viewing subsidiarity essentially as ‘a de-centralising principle, which favours decentralised over centralised decision-making’ (Evans & Zimmermann, 2014, p. 4). It thus contains clear limits to state intervention or other forms of centralised power arrangements and holds the promise to enable individual citizens to directly engage with actual problem-solving on a day-to-day basis. Yet, more recently, this particular attraction has also sparked criticism in the context of increasingly fragmenting and declining civil societies. Strong conceptions of the public good can hardly be upheld by rising levels of individualism which most of the time undermine widespread forms of social cooperation. Instead, a bottom-up conception of subsidiarity seems more at ease with multiple jurisdictions and appears to be an obvious way forward. Lacking viable alternatives, the flexible combination of subsidiarity principles across cultural spaces is a tempting option to achieve the desired (re-) embedding of society. Paradoxically, this may occur through a dual system that safeguards traditional state authority and simultaneously facilitates state cooperation at the regional and international level (Cahill, 2016, p. 130).

Admittedly, this ongoing debate within political theory has remained inconclusive (Cahill, 2017a; 2017b; Davies, 2017). The editors of this special issue believe that further progression will occur through research aiming for a stronger empirical and comparative underpinning. How do political systems of Commonwealth countries compare and contrast in their practical implementation of subsidiarity principles? Has the application of country-specific models of subsidiarity followed theoretical distinctions, and how can these be traced in real world policy making?

Drawing on country examples from four main regions of the Commonwealth significant variation in the organisational space of subsidiarity can be identified. However, this special volume has social pluralism as a starting point and common feature that guides the practical working arrangements of political institutions in Australia, Canada, Malta, Nigeria and the United Kingdom. Aware of their cultural embedding in a wider regional context, individual contributions highlight how characteristics of national polities impact on policy content in diverse and politically contested issue-areas ranging from social policy to human rights protection, and from legislative reforms to new trade agreements.

Exploring competing dimensions of subsidiarity allows the reader to identify diverse manifestations in the policy process and their relevance across different country characteristics in the form of federalism, multi-level governance, constitutionalism, and judicial constraints. The special issue will disentangle a complex web of interactions and relationships between political systems with reference to two fundamentally different organisational logics. The contributors acknowledge the lasting legacy of subsidiarity beyond continental Europe and its reception in the Westminster democracies of the Commonwealth. While it is possible to detect comparable subsidiarity conceptions within and across the case studies presented in this volume, they reveal conflict and contestation as well as complementary and compatible functions (Weinberger, 2014, p. 58). The latter offering some refreshing and promising perspectives on the future UK-EU relationship in a post-Brexit world through empirical investigation.

What is more, the foundation of the principle of subsidiarity in social philosophy suggests meaning and relevance across the social sciences and, therefore, is particularly susceptible to a multi-disciplinary approach showing the qualities of a genuine bridge-building concept. Constitutional law, and European law in particular, have benefitted from the inclusion of broader ‘real world’, practical considerations connected with the notion of ‘law in context’, frequently going beyond the mere reification of legal doctrine. At the same time, the historical genesis of the principle of subsidiarity, formed by a largely conflictual process between the Roman Catholic Church and Benito Mussolini in the 1930s, reminds us of the concept’s embedded nature in political confrontation and its ambition to address collective injustice and societal change (Weinacht, 1995, p. 33).

In the legal academic discourse, subsidiarity has experienced a fairly constant revision of procedural provisions triggered by the formal legal process through the court system at national and international level. There is also a clear overlap with political analysis, as seen through the lens of comparative politics and political economy, when strategic thinking on behalf of Commonwealth states and their governmental elites envisages political reforms and new solutions to long-standing policy problems. This is the case, for example, in the vertical interaction of member states with particular types of regional organisations, either of an intergovernmental or supranational nature.

In a basic sense particular codifications of subsidiarity demand that with the existence of a joint competence decision-making capacity should be allocated to the lowest level possible. In other words, the level of governance that can offer the best operational effectiveness should be privileged. Unfortunately, in practical policy terms this simple rule is not as clear cut as it seems. There is, for example, considerable disagreement whether in a regional policy-making context this principle is of an integrationist or a more anti-integrationist nature; or whether it is easier to reconcile its meaning with notions of sphere sovereignty or forms of hierarchical ordering. For this reason, there are serious practical implementation problems of the general subsidiarity principle at sub-national, national, European and international level.

As empirical work on the application of the principle suggests it leaves ample scope for interpretation on the part of the decision-makers. In fact, at times, it has been found to be legally empty and in political terms even dangerous as it can serve to challenge hard won achievements in terms of market liberalisation, regional integration or human rights protection. As a consequence there is no general consensus on specific and reliable levels of subsidiarity in the analysis of different policy areas. Indeed, some observers have seen subsidiarity as a neutral mechanism at best amounting to a political guideline or a balancing instrument for competing constituencies. After all, it might not imply a categorical delegation of powers to the lowest level possible, but in a more pragmatic interpretation involves a careful weighting of different levels of decision-making exploring forms of centralisation as well as decentralisation.

To come to terms with these tensions in interpretation political economists have tried to argue along the lines of ‘dual subsidiarity’ distinguishing between global forces of economic integration and the still national conduct of regulatory policy. It is precisely this tension between fragmented political powers, on the one hand, and increasingly integrated markets, on the other hand, that may prevent the emergence of a viable political consensus across policy areas. In a comparative country context the practices of subsidiarity likewise face a trade-off between citizen satisfaction through decentralised structures and the benefits of economies of scale from increasingly globalised production processes. In other words, potential welfare effects from domestic policies along subsidiarity concerns have to be traded off to those gains deriving from the deeper economic integration of larger markets.

Certain analogies with the use of subsidiarity in the historically eurocentric context are also obvious. The transformation of the principle from a social and philosophical idea to a legal term, for example, occurred already in the German constitution of 1949. Specifically, Article 72 of the Basic Law states – without explicitly mentioning subsidiarity – that the federal government may use its concurrent powers only ‘if and insofar as the establishment of equal living conditions throughout the territory or the maintenance of legal or economic unity renders federal regulation necessary in the national interest’. More recently, countries in continental Europe such as Italy have introduced subsidiarity as a constitutional provision. Not surprisingly, the ambition to recognise a pluralistic, citizen-driven concern has sparked competing interpretations by the Constitutional Court favouring a vision that seems to privilege powers at central level (Arban, 2015). Again confirming the complex and double-edged reality of subsidiarity. As such, neither nationally nor internationally, does subsidiarity offer a distinctive trump in search for rules of appropriateness that can locate the most effective decision-making level convincingly (Jachtenfuchs & Krisch, 2016, p. 8). Whenever subsidiarity is extended to include legislative functions and there is an alleged need to protect the unitary character of the larger political entity (the central state or a regional organisation) the lower tiers of governance experience a degree of vulnerability.

Frequently, political scientists have stressed the instrumental value of subsidiarity. It would, for example, help to solve decisional conflicts between international intergovernmental organisations and their member states; or in the European Union setting support member states and sub-state entities in finding the right mix of influence by national and European institutions. For them, also, it is necessary to distinguish between passive and active subsidiarity to capture the dynamic and changing relationship between individual countries and their inter- or supranational institutions. The emphasis, as in the case of the Council of Europe or the Economic Cooperation of West African States (ECOWAS), is oscillating between a supportive, developmental and modernising aspect of international governance arrangements and an understanding that reserves a more passive arbitration role respectful of national authorities, their sub-state entities and country-specific interest constellations.

How, if at all, can politics at sub-national, national and international levels work with these competing ideas of subsidiarity and create a positive outcome for the different communities involved? What specific approaches are under use to transform abstract ideas of subsidiarity into political techniques that offer solutions to some of the most pressing dilemmas of Commonwealth countries? Potential answers are explored in this special issue in all three classic categories of comparative politics: the constitutional order (polity), the political process (politics) and specific policy areas (policies).

Critics of regional integration in Europe associate the legal application of subsidiarity as a comparative efficiency test with a regular preference for supranational solutions (Craig, 2012). Accordingly, its original promise to be an adequate response to the democratic deficit of the EU has been undermined. The way the principle has been institutionalised seems to generate a bias in favour of continuing functionalist integration. Paradoxically, it manages to frame controversial policy debates, achieves a degree of de-politicisation and procedurally accommodates disagreements around goals and objectives that mainly arise at the level of the member states.

Despite repeated modifications subsidiarity mechanisms in the EU are far from a remedial tool or panacea to the continuing democratic deficit. Yet, from the perspective of political science, the creativity of national parliaments applying this legislative review mechanism present a rich empirical basis to assert their democratic role in holding EU institutions to account. The EU’s comparatively unusual early warning system confirms national parliaments as the true guardians of subsidiarity. Potentially, their engagement with the formal process can lead to a re-politicisation of particular policy issues if the national legislators clash with positions taken by the European Commission and its exercise of institutional discretion.

For a multi-disciplinary approach it is important to examine whether concerns with efficiency and effectiveness in relation to particular societal goals can be reconciled with classic notions of democratic governance. The latter gives priority to citizens’ needs in terms of proximity of decision-making and the right to self-government. All members of a political community should have an opportunity to shape political aims and objectives in search of a common destiny. Although this set of ideas related to subsidiarity is well established, it has enjoyed an unequal legal status in national constitutions and the formal rules of regional and international organisations. In addition, it remains open to detailed analysis whether complex political processes in multi-level systems can change the more structurally induced status quo.

The country-specific evaluation of the relative importance of the subsidiarity principle depends in no small measure on the understanding of the political process itself, the broader interplay of political forces, and how the general goals and objectives of policy are set. In one interpretation subsidiarity is merely a question about the range of actors tasked with implementation. In another, it accepts the legitimacy base of the goal-setting process through intergovernmental or supranational institutions. In the case of the latter, there is therefore a sufficient level of political considerations entering into the overall framing of problems.

Apart from acknowledging national differences there is also common ground when engaging in a multi-disciplinary analysis of subsidiarity. One way to achieve this is to think in the comparative context not so much of statist federal entities as an ideal type, but rather in terms of variable, multi-level arrangements (Van Kersbergen & Verbeek, 2004). For this reason, we expect in individual case-studies conflict, contestation, and negotiation, whenever a federal or intergovernmental structure holds competence to regulate an aspect of a particular field or issue related to its core purpose; and the constituent units similarily maintain significant responsibility for elements or closely related components of policy. Indeed, still evolving federal states or international organisations may be tempted to develop new policy domains in line with their functional ambitions for the larger political communities they serve. Hence, disagreement about the location of particular policy competencies in multi-level systems should be the norm rather than the exception.

In the search for workable solutions to emerging political conflicts in diverse country settings subsidiarity frequently aligns with other conceptual ideas and operational principles. While in the past proportionality and solidarity have often been cited as necessary companions, the individual studies in this volume identify a new set of support mechanisms which are indispensable to make subsidiarity work in culturally diverse environments. Institutional change, for example, is a major driver for the measured application of new policy instruments in areas of UK social policy, whereas notions of competence based equilibria are vital for the reconfiguration of Australian federalism. In West Africa, by contrast, human rights protection depends much more on domestic responsibility and the acceptance of normative procedural safeguards, whereas Maltese officials support their legislative reviews through a sustained political dialogue with Brussels. Finally, Canada’s external trade deal manages to link subsidiarity with economic mechanisms of (re-) distribution. All this, of course, next to an already complex web of exclusive or shared, coordinating or supplementing competences whenever powers are divided between two or more levels of authority.

The contributors to this issue, therefore, agree that the application of subsidiarity adds to the contestation of the policy process in Commonwealth countries. The determination of which level of government is best suited for regulatory tasks will be difficult most of the time; and this decision will be coloured by what individual countries are willing to accept in terms of the degree of control exercised by diverse authorities in any particular policy area. No doubt, the devil rests with legislative detail and the likely impact of the specific case.

However, there might be some consolation in the fact that the balance between decentralisation and centralisation is an endemic problem in all multi-level systems. Subsidiarity, of course, is intended to contribute to a soft resolution of this frequent dilemma. The authors of this special issue identify five complications in this vital political balancing act. First, there is an element of mistrust as to the real motives of key actors and their intention to expand decision-making power, potentially at the expense of others. Second, there is a good deal of uncertainty how the best possible (or ideal) solution should look within the given parameters of a political system. Third, part of the reason for the non-systematic manifestation of the principle is related to disciplinary divides and their sometimes idiosyncratic definitions of subsidiarity. Fourth, the further slicing of components of the policy cycle across decision-making levels to satisfy subsidiarity demands is in itself an unintended consequence of the increasing popularity of the principle; and finally, fifth, there is a strong emphasis on the good governance and public good dimension of subsidiarity without appreciating enough its basis in individual value judgements.

The articles in this special issue address the multifaceted nature of the principle of subsidiarity, highlighting the strengths and limits of the theoretical and empirical applications of this concept. Günter Walzenbach argues that the practical implementation of subsidiarity as a political principle might be an important step towards building bridges between global economic integration and the boundaries of the nation-state. Increasing economic openness and the safeguard of decision-making prerogatives of national policymakers may be difficult to reconcile without applications of subsidiarity principles. International trade pushes towards overcoming those spatial demarcations that historically have been a defining feature of nation-states.

The natural tension between domestic and international forces impacts on contemporary developments in policy making. Yet this is more difficult to manage and reconcile when spheres of sovereignty, demanding high degrees of political autonomy, mingle with vertical and hierarchical orderings of administrative architectures. In his case study of the Comprehensive Economic and Trade Agreement (CETA), Walzenbach shows how the respective demands of sphere sovereignty in Canada and hierarchical ordering in the EU could not be easily settled, with the outcome being a significant procedural concession in the form of a mixed agreement. Furthermore, this can be interpreted as the product of path-dependent trajectories in the application of political notions of subsidiarity. The longstanding tradition of sphere sovereignty meant that Canadian political leaders had to engage in a constant, often informal, consultation process with provinces and territories. By contrast, on the EU side, the architectural setting undergirded by vertical subsidiarity formally involved the member states. The latter were tied to the removal of tariff and non-tariff barriers in trade agreements where the supranational body of the EU enjoys exclusive competence. Walzenbach argues that the final CETA agreement reflects the accommodation of specific challenges stemming from two distinct subsidiarity models.

The analysis of alternative understandings of subsidiarity is further developed in the comparative study of labour market policies in the United Kingdom and Italy by Rosa Mulé. Great Britain and Italy are two countries infrequently compared, yet there are interesting features that deserve comparisons. For example, the British labour market is one of the least regulated in Europe, well below the OECD average, while Italy has been one of the most regulated in the post-war period but progressively liberalising and reaching the EU average. Mulé contends that the priorities of governments regarding sphere sovereignty or vertical and hierarchical subsidiarity help to shape their national political economies as well as national-supranational links. She argues that in the aftermath of international economic crises British governments endorsed sphere sovereignty by introducing quasi-market mechanisms. This mode of action includes market incentives in traditionally government-funded sectors and thus is known as a quasi-market in public service delivery. Italian policymakers latched on vertical subsidiarity to twist labour market policies from income maintenance to welfare to work.

National political economies and their subsidiarity models offer distinct comparative institutional advantages for policymakers. Comparative institutional advantages sustain political actors in coping with coordination problems that emerge with public and private actors in labour market policy. The prevalence of sphere sovereignty in the British political economy helps to understand why Britain’s relationship with the EU has been uneasy. Disagreements between Britain and the EU also concern the respective roles of state and market operations regarding working environment and wages, and whether the EU should correct imperfections in the market for working conditions, or whether it should intervene in labour conditions generally.

Yet sphere sovereignty and hierarchical orderings may not always represent clear and distinct worlds. Marco Balboni points out that while vertical subsidiarity clearly prevails in the EU context, in Australia subsidiarity concerns the division or distribution of different powers or competences between different levels of government. One reason may be related to the fact that the Australian Constitution provides only for regulations that distribute powers between different units of the federation. Balboni also warns not to conflate subsidiarity with decentralisation or devolution. In the latter, the national or supranational power decides to entrust local or sub-national authorities with some of its powers, which however remain firmly under its control. By contrast, the principle of vertical subsidiarity implies the allocation of tasks between authorities that are in a relationship of mutual equality and differ only with respect to their lesser or greater closeness to citizens.

The tension between sphere sovereignty and hierarchical or vertical ordering has been a constant trait of the historical evolution of national-sub-national relationships in Australia. Attempts to restore a fair balance between the states and the federal government have been marred by political concerns. One school of thought in Australian legal studies argues for the formal introduction in the Australian Constitution of the principle of subsidiarity according to the model adopted in EU treaties. However, this has proved a rather difficult and, so far, unsuccessful task. Doubts regarding the real effectiveness of formally introducing the principle of subsidiarity as codified in EU treaties are widespread in Australia, mainly because the EU experience does not appear reassuring. Balboni contends that the procedural requirements prescribed by EU law may be easily checked by the European Court of Justice but assessing whether an objective can be better achieved by the EU or by member state action is far more difficult. In his conclusion, Balboni highlights that a strict top-down state-centric model might be outdated. Multi-level governance seems more suitable to an increasingly complex society, both at the national and international level, and more adequate to respond to the needs of citizens. Hence efforts should aim at developing a well thought out principle of subsidiarity that could become a viable ordering principle.

To be sure, subsidiarity may operate in several ways, horizontally, laterally and vertically, according to the issues at stake. By looking at the Maltese House of Representatives and its scrutiny of EU legislative drafts, Donatella Viola focuses on the application of vertical subsidiarity in terms of allocation of powers between the European Union and its member states. Despite the vast body of work on the role of national parliaments in the EU, the literature concerned with the monitoring of the Maltese parliament over EU draft laws is sparse. Building on primary sources, including reports of the Maltese parliament and official information provided by parliamentary staff, Viola argues that in light of its history and culture, it is not surprising that Malta has been striving to maintain a certain degree of autonomy, most notably in the field of taxation. Indeed, in 2011 the Maltese House of Representatives has made use twice of the new powers vested in national parliaments by the Lisbon treaty of 2009 with regard to the proposal for a community tax base as well as for a common financial transaction tax. As the latter would impact the 28 member states in a disproportionate manner, appealing to the principle of subsidiarity would mean that national sovereignty is safeguarded in this field. Violations of the principle of subsidiarity were invoked against a number of proposed measures advanced by the EU Commission in that they curtailed the ability of the state to address Malta’s specific status. Most prominently, the vertical principle of subsidiarity meant that Malta required special measures for a number of reasons, including the size of the country, its geographical location and the level of competitive pressure.

A key question raised in the contribution by Ralf Alleweldt is whether we are moving towards the ‘age of subsidiarity’? The author analyses the potential of a new subsidiarity clause introduced in the preamble of the European Convention of Human Rights following a request by the British government. In order to avoid a ‘Brexit no. 2’ the subsidiarity principle has been applied to reduce conflicts between the European Court of Human Rights and national governments, while at the same time maintaining a high standard of human rights protection in Europe. Addressing case law that constitutes instances of path-departure, Alleweldt offers a balanced account of the strengths and weaknesses of the subsidiarity principle that appeals to governments concerned with the supervisory powers of the EU. For example, international human rights protection can only have a subsidiary role vis-à-vis domestic laws and state institutions. This author, therefore, doubts whether the supervising powers of the European Court of Human Rights infringe on national autonomy. Evidence suggests that for applicants it has never been easy to win a case in Strasbourg, indicating that the Court to a large extent accepts reasonable decisions given by domestic courts in human rights cases. Although we are accustomed to think about the principle of subsidiarity in relationships between a supranational authority and national entities, his article considers how subsidiarity also applies in relationships between the state and the individual. The principle implies that the state (the ‘greater association’) should not act instead of individuals in cases where the individuals can act for themselves. The multi-layered nature of the principle of subsidiarity, incorporating supervision, state autonomy and individual protection, raises formidable challenges for the Court in reconciling the universality of human rights with the diversity of their protection.

The subsidiarity principle confronts the intersection between international politics and law on one side, and domestic sovereignty on the other, in a variety of ways. In his article exploring the Nigerian case, Kangnikoé Bado emphasises good governance as a precondition for the successful implementation of the subsidiarity principle. More specifically, the author looks at human rights litigation involving Nigeria within ECOWAS. He asks important questions regarding the conditions for application by the ECOWAS Court of Justice, in particular why the exhaustion of domestic remedies is not a fundamental requirement. Bado argues that to understand the exceptional removal of the rule of prior exhaustion of local remedy, which characterises the regular application of the principle of subsidiarity, one should consider the democratic deficit within the member states with respect to their obligations. In his view, this democratic deficit is a peculiarity for subsidiarity issues in ECOWAS countries that pervades human rights litigation in the whole of West Africa.

All articles in this special issue speak to the relevance of the principle of subsidiarity in shaping complex interactions between political actors and institutional structures. This collection thus addresses a number of important theoretical debates that ought to be pursued empirically by political scientists and legal scholars in a collaborative fashion. One avenue for future research following on from the multi-disciplinary, comparative approach presented here is to confront the challenge to articulate more clearly the institutional preconditions under which subsidiarity concerns in both their horizontal and vertical dimension are likely to be successfully accommodated.

Acknowledgements

The writing of this special issue benefitted from the financial support provided by Bologna University for a research conference held at its Forli Campus on the 12 of April 2018. We would also like to record our appreciation of the constructive criticism and thorough advice received from the anonymous reviewers of this journal.

Disclosure statement

No potential conflict of interest was reported by the authors.

ORCID

Rosa Mulé http://orcid.org/0000-0003-2506-6850

Günter Walzenbach http://orcid.org/0000-0002-7769-2733