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Getting it right: how to make a successful application for the appointment of provisional liquidators
23 July 2014
26 June 2014
It was fascinating being in New York as the US election debacle became unfolded. One of the interesting elements was the way in which this election has prompted all sorts of questions about the need in the US constitution for an electoral college where each state sends its delegates to elect the president.
As we know, the debate has crystallised over how the 25 members, who will represent Florida, will vote at the electoral college. If George W Bush wins the election, it will certainly be against the overall popular vote, although the presidency, the Senate and the House of Representatives are all very evenly divided as a result of the elections.
Nevertheless, when the electoral college was first introduced it was a response to a practical need in a country with a vast land mass and poor communications, divided up into autonomous individual states - and for nearly 200 years it has not caused very much in the way of dispute.
Another one of the principles behind the US constitution, and on which the War of Independence was fought, is the principle of "no taxation with representation", as we all remember from the story of the Boston Tea Party. That principle is embedded in the US constitution and has never been questioned.
On the other side of the Atlantic, when the Common Market was set up, there was no question of national governments surrendering their sovereignty to any federal body. It was for this very reason that the individual governments, by appointing the commissioners and the president, aimed to maintain control. However, as the commission has grown in power and independence, and indeed as the European Union is enlarging, it is now suggested that if it is to push forward the harmonisation of the union, it must have the power to get on and do things and the veto of individual members has to be qualified. One understands the pragmatic response, but significant power would be given to commissioners and the president, who are selected rather than elected, if this proposal was accepted.
As a matter of constitutional principle, is it acceptable that taxation, or indeed any other legislation of principle, should be in the hands of a body which is unaccountable, directly or in any significant way indirectly, to the voters of Europe? As a matter of constitutional law and not of political comment, is the development of a system of law (including taxes) imposed by an unelected commission, whether after consultation or not, acceptable to the democracies which form its components?
One way around this would be to dramatically increase the European Parliament's powers so that they could approve or disapprove of legislation, and have power to appoint or remove the commissioners and the president. This would create a federal state as understood generally. It would, of course, take power away from national parliament and thus diminish its influence, but if the principle that the president Signor Prodi is proposing is accepted, then that diminution of power will happen anyway.
Might it then be that the national governments will become less important than regions? We only need to look at the way that Scotland and Wales wish to keep a regional identity to see that the bigger the unit of economic power grows, the more people need an identity with a smaller unit in which they can feel they have an influence. Do we have the wisdom of the US Founding Fathers, or will we be seeing a rerun of the Boston Tea Party because we have not foreseen the problem?
Martyn Gowar is senior partner at Lawrence Graham.