Can Europe Make It?

Civil rights: playing the territorial card

Sub-state institutions may claim that they need self-government in order to maintain their distinct progressive tradition while, in reality, the distinct progressive tradition is often created in order to justify claims to self-government. 

Lorenzo Piccoli
8 May 2014

One of the last laws the Parti Québécois tried to pass before the Quebec general elections of April 2014 was Bill 52, designed to be the most comprehensive end-of-life legislation in North America. The law arrived in front of the Parliament after a long consultation process that took more than four years. Opposition parties and many civil society organizations heavily criticized the proposal, claiming that it was a violation of the Canadian Criminal Code and of the Canadian Constitution.

In fact, the Canadian Criminal Code defines euthanasia as homicide, but Bill 52 is under provincial jurisdiction, thus not challenging directly the Criminal Code prohibitions, which are federal matters. The Parti Québécois always refrained from using the word “euthanasia’’ for the process that would have given patients a legal option to ask doctors to end their suffering with a lethal injection, preferring the term “medical aid in dying’’. It was an ambitious law that would have certainly raised the constitutional question of whether Quebec had the competence to legislate on an issue normally left to the federal government.

Nevertheless, the law was never voted on by the Parliament. It made it as close as four hours from adoption in February, when the assembly recessed. As Parti Québécois lost its relative majority in the Quebec April elections, many people thought Bill 52 was gone forever. But then, surprising many, when the assembly resumed sitting, the new premier Philippe Couillard set Bill 52 as one of the priorities of the new government.

Why does the parliament of Quebec have such an interest in legislating on this emotional issue concerning individual rights? This is puzzling for one main reason: national parliaments, rather than regional or provincial assemblies have been long treated as the natural containers of citizenship. As the discussion on federal competence shows, many people still think that civil rights issues are normally left to nation-state institutions, not to regional or provincial parliaments.

Yet, there are many examples of how regional parliaments have become increasingly concerned with individual rights issues. The case of Quebec is only the most recent example. Previously in history, Wyoming held one of the first elections where women were included in the suffrage. Similarly, the parliament of California has sought to extend subsidized health insurance, including in the scheme the millions of undocumented immigrants living in the state. In Belgium, the Flemish government established a mandatory health care scheme for all the individuals living in the region. In Austria, the Land of Tyrol provides a constitutional legal right to a minimum social aid for all the residents. These examples provide evidence that within federations, sub-state units make use of the constitutional space left by the legal system to extend rights beyond those recognized by the state level.

Interestingly, also in states that are not constitutionally federal, regional institutions have sought political niches to expand individual rights. For example, in Spain the Basque government was the first to introduce a minimum income guarantee. In the United Kingdom, the Scottish parliament has promoted an encompassing vision of human rights that contrasts sharply with the ideas recently promoted by the British executive.

In Italy, the regional government of Tuscany provides public health care for all individuals, regardless of their citizenship. All these regions compete with the state on the grounds of citizenship, trying to extend fundamental civil rights.

This provides strong evidence for the idea that, while sub-state institutions might sometimes try to restrict individual rights, they can also be key players in civil struggles to extend them. There is good reason for them to do so. For one thing, all of the sub-state regions mentioned in the article operate within the constraints of democratic constitutionalism, which firmly upholds individual rights through constitutional constraints.

One further reason why regions become concerned with individual rights legislation is about distinctiveness from the other regions and from the central state. As European University Institute professor Rainer Bauböck put it, “rather than self-government being a means to preserve cultural difference, this difference is more often preserved as a means to justify the claim to self-government”.

For example, sub-state institutions may claim that they need self-government in order to maintain their distinct progressive tradition while, in reality, the distinct progressive tradition is often created in order to justify claims to self-government. This is why an emotional law as Bill 52 is being pushed forward by different actors sitting in the Quebec Parliament rather than just by one political party.

The institutional defense of self-government has become a particularly contested topic over the last few years. The distribution of power between different layers of government is being renegotiated in many states and regions are continually required to explain why they deserve self-governing rights.

From Scotland to Quebec, passing through South Tyrol and Britanny, autonomous regional institutions in particular are seeking new strategies to justify their status. The invention of a distinctively progressive approach to individual civil rights provides one possible answer to the question why a regional polity deserves greater territorial autonomy from the state.

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