Protection of Fundamental Rights in Europe by Sonia Morano-Foadi & Stelios Andreadakis

Author:Sonia Morano-Foadi & Stelios Andreadakis
Language: eng
Format: epub
ISBN: 9783030423674
Publisher: Springer International Publishing

1. The ‘Trade’ of Negotiating Agreements

In order to introduce the ‘agency’ theory, it is appropriate to appreciate that legislating in a democratic context has been characterised as being ‘a compromise’; it is trading. It is the adjustment of interests’.10 Threats, promises, and pressure are used by skilful negotiators to persuade other actors, build coalitions and make deals ahead of the voting that usually takes place at the final stage of the legislative process.11 Negotiations are the stage for power politics, as ‘behind the scenes there are promises and threats; and “horses are traded”, or bargains struck, which do not call for mention in the conference room’.12 Bargaining has to do with power and influence and in most occasions the constitutional structure reflects the power relationships, the agreement struct at the end will reflect to a large degree the preferences of the actors with the strongest influence.13 This makes us reflect on Weber’s theory on charisma, as it is charisma—directly or indirectly—that bestows an individual command with legitimacy, indicating the content and limits of its “lawfulness.”14 In environments characterised by unstable political, social and economic circumstances, policymaking is a process characterised by flexibility and conciliation rather than rigidness.15 The requirement for consensus encourages the creation of alliances and alignment of the actors involved. Nevertheless, such alignments seem to be transient or case specific16 and this means in practice that actors will agree to offer their vote or support in return for cooperation in future situations when their own interests would matter more.17 Such reciprocity between negotiators allows the achievement of consensus when required, but also partly explains why decision-making is often a political process over and beyond the actual content of the legal rules that are approved and find their way in the statute books.

At this point, it needs to be reminded that reaching agreement on every issue is not always feasible, especially when we have overlapping entities or legal orders. Negotiations as a constitutional process in a multinational and multicultural environment can be successful every time that the negotiating parties are truly engaging with the process and with each other recognising that there are different viewpoints. There are no perfect agreements and ideal arrangements, so compromise solutions should not be seen as prima facie negative outcomes. Sometimes ‘everything depends on making a proposition “yes-able” to as many participants as possible’.18 In bargaining situations, the ‘no-deal’ scenario is always the least desirable outcome, because none of the actors involved wants to suffer a breakdown in the negotiations. That is why in the case of Brexit, for instance, the ‘no deal’ scenario was never ruled out as an option, as it was used by the Government to have its Agreement approved by the Parliament. However, the real intention of the UK Government was not the ‘no deal’ agreement. In fact, such breakdowns come with a huge political cost and may lead to broken institutional relationships, so all parties do their best to avoid the disagreement, even if that means going for a compromise solution.

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