Abstract
Make no mistake: this is a very fine book. Its strength is its detailed and critical account of various difficult areas of law rarely discussed together. If the book has a weakness, it is that the critical element, though placed squarely within an established school of public law and regulation scholarship, does not wholly convince. That said, critical approaches to public law and regulation are notoriously contestable. It may be that this reviewer’s reservations say more about the rivalries within those disciplines than about the book itself. That is for the reader to judge.
What is this book all about, then, and why should the readers of this particular journal be interested in it? Well, one answer is that the book is about all those principal areas of law that bear upon the possibility of fundamental and far-reaching legal and political change. No serious interpreter of British politics, law or public policy, no well-informed activist for legal and political reform in Britain, could easily dispense with it. Think of all that might divide us: bank regulation, increased income tax rates for very high earners, inheritance tax reform, property taxation, the High Speed 2 rail link, financial services reform, Trident, the welfare cap, European Union (EU) membership, Heathrow airport expansion, subsidies for new nuclear reactors, rail renationalization (Pickard, 2015). The list is long. Each flashpoint of contemporary politics involves the prosaic components of what Tony Prosser calls ‘the economic constitution’: the whole range of ‘institutional arrangements’ and ‘constitutional principles’ that are ‘relevant to management of the economy’ (p. 8). Negotiating those arrangements and principles involves the constitutionally sensitive process of ‘economic management’ (p. 7). A comparably wide-ranging analysis has not, so far as the reviewer is aware, been done in this jurisdiction before. Bank and other financial services regulation; taxes and public borrowing; public expenditure; public procurement, including defence procurement, all fall within the book’s scope. The author’s ambitious objectives are twofold: to examine the ‘coherence’ and interrelationships of the institutions tasked with management of the economy (p. 2); and ‘to assess the legitimacy and accountability of these complex arrangements as they work in practice’ (p. 2). The author’s conclusions (Chapter 10) are pretty bleak: there is little coherence (p. 245), he concludes. What is more, the inconsistent and overlapping responsibilities of different institutions obscure lines of communication and accountability (p. 245). It would indeed be little wonder, the reader might infer, if none of the causes that divide us ever got resolved to anyone’s satisfaction.
Let it be said that the book is beautifully structured, is often elegantly written and is very well produced. The last of these points, though not perhaps the direct responsibility of the author, deserves comment at a time when electronic formats seem so simple and easy an alternative to hard copy. The index is extensive and useful. The bibliography provides a conspectus of evidence and of learning across a wide area. Referencing is extremely careful. There are full tables of statutes, cases, European legislation and abbreviations. The elegance of the author’s style is shown to best advantage in his oft-displayed facility for clear and compact synthesis. Some of this is superb. For the reviewer, a tax lawyer, two extended discussions stand out: public borrowing (pp 103–107, 109) and public expenditure (Chapter 5). The former, of course, is about raising public revenue, whilst the latter is concerned with how the proceeds are spent. Neither topic falls within the ambit of tax lawyers’ normal concerns nor public lawyers, with some notable exceptions (see e.g. McEldowney, 2011) have not been much concerned with the latter.
The structure of the book is confident and apposite. Once the ideas of the economic constitution and of economic management have been surveyed in Chapter 1, the two succeeding chapters mark out, first, the spectrum of domestic institutions involved in economic management (notably HM Treasury and the Bank of England), then the treaty organizations that, to some greater or lesser extent, share those responsibilities (most importantly, the EU, the World Trade Organization, the Council of Europe – because of the European Convention on Human Rights, Protocol 1, Article 1 – and the Organization for Economic Co-operation and Development). Chapter 4 deals, first, with the parliamentary process of raising taxes and auditing the receipts, then (as mentioned) with the almost entirely extra-parliamentary process of raising and servicing public borrowing on the debt markets. Chapter 5 covers both how requisite amounts of public revenue are fixed in advance and also the bases on which the proceeds are distributed between different departments and projects. Chapters 6 to 9 expand on topics already introduced earlier in the text (monetary policy, financial services regulation, state aid and HM Government’s shareholdings (significantly, in nationalized banks). Finally, Chapter 10 draws the coherence and accountability issues together in the terms summarized above.
Much of all, this is exemplary for its clarity and detail. However, this elegance of style and confident structure is somewhat less apparent in those sections of the book where the author’s conclusions are drawn together. On the one hand, it is important to emphasize that what is being attempted here is both pioneering and incredibly difficult. On the other, the reviewer was conscious (particularly reading Chapter 10) that the author was occasionally straining to find ever more figurative expressions to characterize the phenomena he was describing. A different, though related, point might be made about the book’s length. Somewhere around 250 pages is becoming a standard span for monographs. The reviewer senses that a longer book would have accommodated the intricacy of the arguments more effectively.
What, then, of the critical reservations highlighted at the beginning? Three of them weigh in the reviewer’s mind. First, the author is preoccupied with legitimacy as accountability and with tracing lines of communication and accountability through published terms of reference. The reviewer remains unconvinced about the extent to which this is desirable or even possible. The key legitimating factor seems rather to be that of effectiveness. Secondly, the reviewer is satisfied with Martin Loughlin’s distinction between competence and capacity. Institutions have more or less clearly defined areas of competence and the capacity with which they are able to discharge those competences is a question of their effectiveness or lack of it (see Loughlin, 2003). Thirdly, there is an acceptance throughout the text that what the author calls ‘constraints’ are somehow a bad thing. Especially in the largely prerogatival sphere of economic management, self-imposed constraints or constraints seemingly imposed from without (such as competences assumed by the EU institutions) may actually enhance the capacity of institutions. For instance, not having to pronounce once and for all on the applicability of the EU Treaty freedoms to the domestic law of taxation is doubtless a matter of enormous relief to the justices of the UK Supreme Court. However, these three reservations concern matters on which the views of public lawyers might reasonably differ, and it would be unfair to push them too far within the confines of a book review. This is a work very much in the tradition of the so-called ‘Sheffield school’. The author is true to the concerns of that movement. Besides acknowledging European influences (Cassese, 2012, for instance), the author takes significant inspiration from an earlier Sheffield school-inspired work in similar vein (Daintith and Page, 1999). In addition, it should, perhaps, be noted that what the author is attempting here is not so far-reaching as to demand a definitive answer to all of the questions that he raises.
The reader might recall how, in the summer of 2015, Greece was saved from leaving the European Single Currency, and its Prime Minister, Mr Alexis Tsipras, finally accepted the terms of an 86 billion Euro bailout. There were reports at the time of how Left-wing members of Syriza, the governing party, had planned to arrest the governor of Greece’s central bank, assume control of the mint and reinstate the drachma as the national currency (Hope and Barber, 2015). Some commentators deplored the ignorance of these people. Others wondered why any understanding of an economic constitution would be necessary if all that was desired was to overthrow it. Although radical political activism tends to decry the need for close engagement with the technicalities, those who have to interpret them, as well as activists of a moderate disposition, do need to know the relevant details. If it had been Britain, and a comparable band of Left-wing politicians had read this book under Greek circumstances, they would have had all the detail they required. It is not just the large themes around legitimacy and communication, already discussed, that are intriguing in the author’s analysis. The role of ordo-liberalism, as distinct from neo-liberalism, in the European Union order, and the interdependency of public law and private law concepts in important areas of economic management, are exceptionally well covered. In the context of a general ‘swing’ to the ideological Right across Europe (Lloyd, 2015) and of the Labour Party’s ‘swing’ to the Left in 2015 (something that the author could hardly have foreseen), such detailed commentary will be necessary as radical outcomes to the problems that beset the United Kingdom are discussed. Here, though, there are omissions. The reviewer felt that welfare, energy, planning and environment were potentially important (yet absent) elements of the story.
All in all, this is a fine book, drawing on meticulous and too often thankless examination of official documents. Someone has to be prepared to undertake this task and, if they are, to do it well. The author has accepted that challenge and met it admirably.