Just for a change, a post about a recent judgment of the Court of Justice. On Tuesday, the Court ruled that Germany was breaching free movement law by means of its tax law rules which limited a tax deduction for private education to cases where children were sent to private schools on German territory, or to 'German schools' or 'European schools' outside the territory.
In a reference from the German courts (C-76/05 Schwarz), alongside an infringement action brought by the Commission (C-318/05), the Court ruled that the German tax law breached EC free movement law. The full judgments are on the Court's website; the press release is here:
http://www.curia.europa.eu/en/actu/communiques/cp07/aff/cp070054en.pdf
In a nutshell, the rules breached the free movement of services because they made it more difficult for the recipients of services to receive those services from service providers (private schools, which, confirming previous case law, fall within the scope of the Treaty rules on the provision of services) established in other Member States. They also breached the free movement of workers and freedom of establishment, because they could deter parents from moving to Germany because the parents would not receive a tax break if they left their children 'behind', receiving private education in the home Member State. The rules also affected the free movement right of those Germans who leave Germany but who are subject still to German taxation (ie public servants), because they limit the ability of such persons to send their children to private education in the host State. Finally, the rules disadvantaged the free movement rights of the children pursuant to Article 18 EC.
The Court did not accept the German justifications put forth, because: national competence over tax and education must be exercised in accordance with EU law; the argument that the foreign schools and German schools were not comparable was irrelevant since the grant of the tax benefit did not depend on the characteristics of the German schools; and the argument that the tax credits foregone would be too expensive was dismissed on the facts.
Comments
The Court did not consider the free movement rights of those parents who move to Germany for non-economic reasons. This is unfortunate, because the parents might have to be considered distinctly from the children, in the event that one of the parents is an EU citizen, but the child is a third-country national. Surely the same reasoning applies in this scenario. (Remember that while third-country nationals can benefit from the free movement of services as service recipients, if the service provider is an EU citizen or company, this applies only where the recipients do not themselves cross a border: Case C-290/04 FKP Scorpio Konzertproduktionen GmbH).
The Court's judgment on the application of the free movement rules to tax credits to support private education is not too surprising, although it is interesting to remember that about 10 years ago a high-level German court ruled that these tax credits don't violate EU free movement law, without referring the point to the Court of Justice. This isn't mentioned in the Court's judgment this week. Another indication that it can take some time to have an EU law right vindicated if the national courts are reluctant to send questions to Luxembourg.
Of course the judgment is only directly relevant if a Member State provides tax credits for private education -- or by analogy, direct subsidies to parents -- at all. In my view such credits or subsidies are outrageous -- there is no way that taxpayers as a whole should pay more tax to, in effect, subsidise generally wealthier taxpayers to send their children to private school (and equally it is wrong for taxpayers as a whole to support a direct subsidy for those wealthy taxpayers). Worse still if the tax credit (or direct subsidy) comes directly out of the general state education budget, ie if it takes money straight out of public education (cf the appalling proposal for tax rebates for parents with children in private schools, pushed by the Tories at the last UK election).
But there is no way that EU law should or could get involved with the issue of whether tax credits or subsidies for private education should exist. If a Member State wants to redistribute money from poorer taxpayers to wealthier parents in this way, that's their decision, and should always remain so. These judgments do make that decision more expensive, however, since the subsidies or credits would have to be extended to at least some parents who send their children abroad to private schools. So the judgments make it more likely that Member States will scale back the level of such subsidies or credits, or abolish them, or refrain from introducing them. Hooray!
As for the issue of justifications, the Court, it seems to me, leaves it open to Germany to devise some sort of alternative method of restricting tax credits for private education received abroad. The most obvious route would be to restrict the tax credit to a fixed amount (rather, under the current rules, to a percentage of the fees), which the Court expressly endorses. The Court also seems to accept that some sort of objective accreditation procedure, based on the content of curriculum or somesuch, might be justified. It seems to me that this would be awfully difficult to manage and, if it is tried, would give rise to litigation raising delicate issues about curriculum content.
Plus I don't believe a language requirement could be justified. Yes, I know it was justified in the famous Groener case. But it is one thing for Ireland to require all pupils to learn Irish in schools located on its territory, and another thing for it to require the children of all parents subject to Irish taxation to learn Irish, even when the children attend schools outside Irish territory. Surely that would be disproportionate, even if the rule only concerned tax credits or subsidies to support private education.
And surely it would be hugely disproportionate, in light of this judgment, to ban children from receiving private education abroad at all, even if private education is banned, or heavily regulated, in a State. So much for the old idea of the Labour left that private schools should be banned in the UK -- if they were (as the opponents of this idea always maintained) they could always be set up abroad (assuming, of course, that the foreign law in question allowed this); and it is now clear that the UK could not stop parents sending their children there (and how extreme would it look if it seriously tried to do this). This is a good thing too, in my view -- I am not keen on private schools myself, but it is a sign of extreme intolerance to stop parents from sending their children to private schools if they wish to do so. The distortion this undoubtedly causes in the education system is probably less than the distortion caused by the middle-class parents who remain in the state education system and drive up house prices (and so drive away poorer parents) around the most popular state schools. Anway, the only long-term way to address this is to improve standards of state education.
Of course Member States with bans or severe restrictions on private schools presumably do not offer tax credits to support private education, or take the draconian step of banning children from attending foreign private schools. What they might be doing, however, is refusing to fully recognise the qualifications obtained abroad in private schools -- and these judgments, although on a different issue, obviously aid the argument that such qualifications must be recognised as a matter of EU free movement law.
Do the judgments apply where a state gives a direct subsidy to support private schools? Yes, if the subsidy is linked to the student (ie if the German government gave a direct subsidy to a private school for each student it enrols, the judgments would apply by analogy. This would get really messy to apply to foreign schools if the subsidy were given through the German tax system, though). But I am not convinced that a subsidy given to a private school by a Member State to support its operating costs would be covered by these judgments -- not that such subsidies should be given, in my view -- because it is not the same sort of situation. You can hardly expect the German government to send cash direct to Eton and Marlborough!
It seems to me also that if governments give a tax credit to benefactors of private schools, this tax credit must apply equally depending on the location of the school within the EU. (This would be an application of the free movement of capital, of course; and in this case, the nationality of the benefactor wouldn't matter). It might be arguable that private schools registered as a charity (as in the UK) are not comparable to private schools registered as companies or in some other legal form in other Member States -- does anyone have any thoughts on that?
The judgments will facilitate free movement of persons, of course. But they will also facilitate competition between schools, since foreign schools will be less expensive (now that tax credits or direct subsidies, where they exist, are extended to them) as compared to private schools in the student's home State -- and indeed, as compared to state schools in the student's home state. But the finance available to state schools won't be reduced unless the tax credits or subsidies come straight from the general state education budget (so the Tory proposal in the 2005 UK election looks even madder, in light of these judgments). And it seems unlikely that vastly increased numbers of students will end up in private schools as a whole as a result of the judgments. Again, any increased take-up of private education will not have much impact compared to the existing distortions within the state system (at least, the state education system as it works in England and Wales); and the numbers attending private school might even decrease if the effect of the judgment is that States offering tax credits or subsidies for private education decided to reduce them.
Private schools should hardly be whinging about this increased competition -- since the effect of having private schools around is to provide competition for the state sector.
As for advertising, surely it follows from the judgments that foreign schools should be allowed to advertise for students on the same basis as private schools in the home State. What if advertising by private schools is banned or severely restricted in the home State? Is this a non-discriminatory restriction on the freedom to provide services? I think so, although it might possibly be justified -- but I doubt it's very important anyway, since anyone who can fund a foreign private school for their children can surely afford access to the Internet and will just search for foreign schools' websites.
A final point - the distinction between state education and private education is reaffirmed by the Court here, as regards the free movement of services. This is likely to cause continued problems of definition. A more subtle point, though, is that the judgments don't just turn on the free movement of services, but also on several other types of free movement rights. Could it be argued, then, that the free movement of workers, et al, is restricted if a Member State does not reimburse to parents the cost of educating their child in the State education system of another Member State? This could be considered analogous to the Watts judgment concerning the NHS and foreign medical treatment, and there is also a pending case before the Court of Justice (Morgan) raising a comparable point as regards post-secondary education. Any thoughts?
Thursday, 13 September 2007
Tuesday, 4 September 2007
The European far-right
In response to my previous post on 'Open Europe's Big Lie', an anonymous comment first stated:
At least we pro UK types are not traitors and quislings like you. People like you want to betray national democracy to the unelected crowd who rule the Empire (EU).Are you Oswald Mosley reincarnate?
I replied:
I rather think that Mosley would be supporting the Eurosceptic side, rather than the EU. But I do NOT mean to suggest that any more than a tiny handful of Eurosceptics are fascists....
'Stuart' then commented:
Oswald "Europe a Nation" Mosley likely to be "supporting the eurosceptic side"? You're a bit mixed up there.Fans of the emerging EU State have some very nasty bedfellows in the foundation of their ideas.In supporting democracy and diversity on our continent I regard myself as a pro-European in the real sense. It is why I cannot support the EU political centralisation process which, in steadily undermining Europe's flexible, representative national democracies, is surely putting the stability of our continent at risk once more. After all, healthy democracy is the only sure guarantor of peace."Absolute national parliamentary democracy" is perfectly feasible. What is needed to enhance it are flexible, democractically-acceptable forums for international co-operation. Not out-dated superstate / integration projects like the EU.This simply isn't the 1950s any more.
This led me to investigate the political beliefs of Oswald Moseley -- which I will admit I am unfamiliar with. Some Wikipedia entries filled in some basic backgrounds, and linked me to some sort of 'tribute' site. Excerpts from two of the Wikipedia entries:
Europe a nation: [a Mosley idea from the 1950s-60s]
Europe a Nation consisted of the idea that all European states should come together and pool their resources (including their colonies) to work as one giant superstate under a system of corporatism. For Mosley, it was the only viable alternative to the prospect of individual European countries carrying on alone, whilst the growing global market continued to make them poorer. Autarky was, therefore, a central aim of Europe a Nation, with Africa retained in colonial status to serve the needs of the European people (explaining the occasional use of the term Eurafrika as an alternative name).
National Party of Europe:
The National Party of Europe (NPE) was an initiative undertaken by a number of far right parties in Europe during the 1960s to help increase cross-border co-operation and work towards European unity.
There is a summary of the party objectives there, but the full text of an agreed policy statement of the party can be found on the 'tribute' site, at http://www.oswaldmosley.com/archives/npe.html
The policy statement is as follows:
That Europe a Nation shall forthwith be made a fact. This means that Europe shall have a common government for purposes of foreign policy, defence, economic policy, finance and scientific development. It does not mean Americanisation by a complete mixture of the European peoples which is neither desirable nor possible.
That European government shall be elected by free vote of the whole people of Europe every four years at elections which all parties may enter. This vote shall be expressed in the election of a parliament which will have power to select the government and at any time to dismiss it by vote of censure carried by a two-thirds majority. Subject to this power of dismissal, government shall have full authority to act during its period of office in order to meet the fast moving events of the new age of science and to carry out the will of the people as expressed by their majority vote.
That national parliaments in each member country of Europe a Nation shall have full power over all social and cultural problems, subject only to the overriding power of European Government in finance and its other defined spheres, in particular the duty of economic leadership.
That the economic leadership of government shall be exercised by means of the wage-price mechanism, first to secure similar conditions of fair competition in similar industries by payment of the same wages, salaries, pensions and fair profits as science increases the means of production for an assured market, thus securing continual equilibrium between production and consumption, eliminating slump and unemployment and progressively raising the standard of life. Capital and credit shall be made available to the underdeveloped regions of Europe from the surplus at present expatriated from our continent.
That intervention by government at the three key points of wages, prices, where monopoly conditions prevail and the long term purchase of agricultural and other primary products alone is necessary to create the third system of a producers' state in conditions of a free society which will be superior both to rule by finance under American capitalism or rule by bureaucracy under communist tyranny. It is at all times our duty in the solidarity of the European community to assist each other to combat the destruction of European life and values from without and from within by the overt and covert attack of communism.
That industries already nationalised will be better conducted by workers' ownership or syndicalism than by state bureaucracy, but the system of the wage-price mechanism will, in full development, make irrelevant the question of the ownership of industry by reason of the decisive economic leadership of elected government, arid will bring such prosperity that workers will have no interest in controversies which belong to the 19th century.
With the creation of Europe a Nation as a third power strong enough to maintain peace, a primary object of the European government will be to secure the immediate and simultaneous withdrawal of both Russian and American forces from the occupied territories and military bases of Europe. Europe must be as strongly armed as America or Russia until mutual disarmament can be secured by the initiative of an European leadership which will have no reason to fear economic problems caused by disarmament as has capitalist America, nor to desire the force of arms for purposes of imperialist aggression as does communist Russia.
The emergence of Europe as a third great power will bring to an end the political and military power of the U.N., because these three great powers will then be able to deal directly and effectively with each other. The peace of the world can best be maintained by direct and continuous contact between these three great powers which represent reality instead of illusion and hypocrisy. The production of nuclear weapons will be confined to these three great powers until mutual disarmament can be secured.
That colonialism shall be brought to an end. A way will be found to maintain or to create in Africa states under government of non-European but African origin amounting to about two-thirds of the continent, and other states under government by peoples of European and Afrikaner origin amounting to about one-third. In non-European territory, any European who chose to remain should stay without vote or political rights. He would be in the same position as any resident in another country, subject to the maintenance of human rights within their own communities, by reciprocal arrangement between European and non-European territories. Conversely, any non-European remaining in European territory would have neither vote nor political rights, subject to the maintenance of the same basic human rights. Multi-racial government breaks down everywhere in face of the non-European demand for one man one vote which they learnt from the West and becomes a squalid swindle of loaded franchises to postpone the day of surrender rather than to solve the problem. Better by far is the clean settlement of clear division. Europe must everywhere decide what it will hold and what it will relinquish. The Europeans in union will have the power of decision. Today they lack only the will. We will hold what is vital to the life of Europe, and we will in all circumstances be true to our fellow-Europeans, particularly where they are now threatened in African territory.
That the space of a fully united Europe including the lands to be liberated by American and Russian withdrawal, the British Dominions and other European overseas territories, and approximately one-third of Africa is a just requirement for tile full life of the Europeans in a producer and consumer system which shall be free of usury and capitalism, of anarchy and communism. Within the wide region of our nation the genius of modern science shall join with the culture of three millennia to attain ever higher forms of European life which shall continue to be the inspiration of mankind.
What to make of this? I had no idea that there ever was a pro-European far right, for the simple reason that all the far-right groups that I know of in various Member States seem to be profoundly hostile toward the EU. And indeed you would expect that extreme nationalists would not like an organisation that reduces national sovereignty and facilitates immigration, etc. It is striking that this pro-European far right did not seem to enjoy any electoral success at the time, and certainly as far as I can see there are no traces of it today.
While I obviously don't agree with the policy platform of the NPE, I can see after reading it how a pro-European far-right policy can be envisaged -- their thinking being that it is a necessary evil (in their minds) to band together with some foreigners in order to more effectively exclude the less desirable 'foreigners' (some of whom, like black citizens, obviously aren't actually foreign, but of course the far-right don't see it that way).
The interesting thing is that just as there are pro- and anti-European wings of the more moderate shades of political opinion, and indeed of the far-left, there are/were both pro- and anti-European wings of the far-right. But it surely not suprising that the pro-European wing of the far right was unsuccessful and died out, because it was surely too much to ask for far-right supporters to compromise their 'ideal' of basic hatred of all foreigners in order to team up with some foreigners in order to exclude the remaining foreigners. These people are just too stupid and angry to grasp the subtlety of that argument -- which is why they are far-right supporters in the first place.
To get back to Stuart's specific comments, I could hardly be considered the 'new' Moseley since I entirely disagree with corporatism, autarky, kicking Americans out of Europe, shutting down the UN, or (in particular) reserving a third of Africa for white people or disenfranchising 'non-Europeans' who remain within Europe. Indeed, I doubt there is much support now for any of these views among the vast majority of people, whether they are Eurosceptic, Europhile or however they would describe themselves.
I also think that the NPE policy also would transfer too much power to the European level, although some Europhiles would support this. But since those Europhiles would not support key elements of the rest of the NPE policy, they should not be slurred by association.
Since the current EU, as it would be developed further by the Reform Treaty, hardly supports these policies either, I rather think that Mosely would be against it, and would therefore be considered a Eurosceptic. (I suspect he would also become a Eurosceptic anyway for tactical reasons, since a pro-European far-right position was just not viable). Could you really see him supporting, say, the new Article 10 of the Treaty on the Functioning of the Union -- 'In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on...racial or ethnic origin'? Never mind the power in the current Article 13 TEC to adopt legislation to combat racial discrimination.
As for Stuart's statement that 'Fans of the emerging EU State have some very nasty bedfellows in the foundation of their ideas', you might as well say that Open Europe is a bedfellow of the French National Front, because both of them strongly criticise the EU. But that is a stupid argument, as Open Europe and the National Front have nothing else in common. Equally it is stupid to say that supporters of the Reform Treaty are bedfellows of the far right, for exactly the same reasons.
I was told the first day I joined a university debating society that the moment I compared my opponents to Hitler, I had lost the debate, because my opponents were undoubtedly arguing for some policy far short of a thousand-year Reich and the Holocaust. Stuart, that was good advice.
The only real bedfellows of Mosely are those Conservatives of the 1960s/70s who would have backed his idea of reserving a third or so of Africa for Europeans and Afrikaaners. But again, today's Conservatives would hardly back this view and should not be slurred by the association of their predecessors with some of Mosely's ideas.
Almost finally -- I was overstating the case in saying that pure national parliamentary democracy is not feasible at all. Rather it is vastly less effective than qualified majority voting at achieving shared objectives such as the single market and the protection of the environment.
Right, it is not the 1950s, but then again the EEC has profoundly changed since then by means of multiple Treaty amendments -- as Eurosceptics find it convenient to point out when they want to make the case for a referendum. The point still stands that an EU of 27 states will be ineffective at accomplishing its key objectives without a lot of QMV.
Finally -- all this is quite a detour from my original post, which solely concerned Open Europe's claim that the British opt-out from policing and criminal law which appears in the draft Reform Treaty was already present in the Constituional Treaty. Again, this assertion is utterly false -- but they have continued to make it. See Neil O'Brien's Guardian comment piece of 31 August:
....The government also argues that the UK will have "opt outs" from all the significant bits.
One problem with this argument is that they are the same "opt outs" that were in the original constitution - on which the government promised a referendum....
online at: http://commentisfree.guardian.co.uk/neil_obrien/2007/08/dodging_the_ballots.html
At least we pro UK types are not traitors and quislings like you. People like you want to betray national democracy to the unelected crowd who rule the Empire (EU).Are you Oswald Mosley reincarnate?
I replied:
I rather think that Mosley would be supporting the Eurosceptic side, rather than the EU. But I do NOT mean to suggest that any more than a tiny handful of Eurosceptics are fascists....
'Stuart' then commented:
Oswald "Europe a Nation" Mosley likely to be "supporting the eurosceptic side"? You're a bit mixed up there.Fans of the emerging EU State have some very nasty bedfellows in the foundation of their ideas.In supporting democracy and diversity on our continent I regard myself as a pro-European in the real sense. It is why I cannot support the EU political centralisation process which, in steadily undermining Europe's flexible, representative national democracies, is surely putting the stability of our continent at risk once more. After all, healthy democracy is the only sure guarantor of peace."Absolute national parliamentary democracy" is perfectly feasible. What is needed to enhance it are flexible, democractically-acceptable forums for international co-operation. Not out-dated superstate / integration projects like the EU.This simply isn't the 1950s any more.
This led me to investigate the political beliefs of Oswald Moseley -- which I will admit I am unfamiliar with. Some Wikipedia entries filled in some basic backgrounds, and linked me to some sort of 'tribute' site. Excerpts from two of the Wikipedia entries:
Europe a nation: [a Mosley idea from the 1950s-60s]
Europe a Nation consisted of the idea that all European states should come together and pool their resources (including their colonies) to work as one giant superstate under a system of corporatism. For Mosley, it was the only viable alternative to the prospect of individual European countries carrying on alone, whilst the growing global market continued to make them poorer. Autarky was, therefore, a central aim of Europe a Nation, with Africa retained in colonial status to serve the needs of the European people (explaining the occasional use of the term Eurafrika as an alternative name).
National Party of Europe:
The National Party of Europe (NPE) was an initiative undertaken by a number of far right parties in Europe during the 1960s to help increase cross-border co-operation and work towards European unity.
There is a summary of the party objectives there, but the full text of an agreed policy statement of the party can be found on the 'tribute' site, at http://www.oswaldmosley.com/archives/npe.html
The policy statement is as follows:
That Europe a Nation shall forthwith be made a fact. This means that Europe shall have a common government for purposes of foreign policy, defence, economic policy, finance and scientific development. It does not mean Americanisation by a complete mixture of the European peoples which is neither desirable nor possible.
That European government shall be elected by free vote of the whole people of Europe every four years at elections which all parties may enter. This vote shall be expressed in the election of a parliament which will have power to select the government and at any time to dismiss it by vote of censure carried by a two-thirds majority. Subject to this power of dismissal, government shall have full authority to act during its period of office in order to meet the fast moving events of the new age of science and to carry out the will of the people as expressed by their majority vote.
That national parliaments in each member country of Europe a Nation shall have full power over all social and cultural problems, subject only to the overriding power of European Government in finance and its other defined spheres, in particular the duty of economic leadership.
That the economic leadership of government shall be exercised by means of the wage-price mechanism, first to secure similar conditions of fair competition in similar industries by payment of the same wages, salaries, pensions and fair profits as science increases the means of production for an assured market, thus securing continual equilibrium between production and consumption, eliminating slump and unemployment and progressively raising the standard of life. Capital and credit shall be made available to the underdeveloped regions of Europe from the surplus at present expatriated from our continent.
That intervention by government at the three key points of wages, prices, where monopoly conditions prevail and the long term purchase of agricultural and other primary products alone is necessary to create the third system of a producers' state in conditions of a free society which will be superior both to rule by finance under American capitalism or rule by bureaucracy under communist tyranny. It is at all times our duty in the solidarity of the European community to assist each other to combat the destruction of European life and values from without and from within by the overt and covert attack of communism.
That industries already nationalised will be better conducted by workers' ownership or syndicalism than by state bureaucracy, but the system of the wage-price mechanism will, in full development, make irrelevant the question of the ownership of industry by reason of the decisive economic leadership of elected government, arid will bring such prosperity that workers will have no interest in controversies which belong to the 19th century.
With the creation of Europe a Nation as a third power strong enough to maintain peace, a primary object of the European government will be to secure the immediate and simultaneous withdrawal of both Russian and American forces from the occupied territories and military bases of Europe. Europe must be as strongly armed as America or Russia until mutual disarmament can be secured by the initiative of an European leadership which will have no reason to fear economic problems caused by disarmament as has capitalist America, nor to desire the force of arms for purposes of imperialist aggression as does communist Russia.
The emergence of Europe as a third great power will bring to an end the political and military power of the U.N., because these three great powers will then be able to deal directly and effectively with each other. The peace of the world can best be maintained by direct and continuous contact between these three great powers which represent reality instead of illusion and hypocrisy. The production of nuclear weapons will be confined to these three great powers until mutual disarmament can be secured.
That colonialism shall be brought to an end. A way will be found to maintain or to create in Africa states under government of non-European but African origin amounting to about two-thirds of the continent, and other states under government by peoples of European and Afrikaner origin amounting to about one-third. In non-European territory, any European who chose to remain should stay without vote or political rights. He would be in the same position as any resident in another country, subject to the maintenance of human rights within their own communities, by reciprocal arrangement between European and non-European territories. Conversely, any non-European remaining in European territory would have neither vote nor political rights, subject to the maintenance of the same basic human rights. Multi-racial government breaks down everywhere in face of the non-European demand for one man one vote which they learnt from the West and becomes a squalid swindle of loaded franchises to postpone the day of surrender rather than to solve the problem. Better by far is the clean settlement of clear division. Europe must everywhere decide what it will hold and what it will relinquish. The Europeans in union will have the power of decision. Today they lack only the will. We will hold what is vital to the life of Europe, and we will in all circumstances be true to our fellow-Europeans, particularly where they are now threatened in African territory.
That the space of a fully united Europe including the lands to be liberated by American and Russian withdrawal, the British Dominions and other European overseas territories, and approximately one-third of Africa is a just requirement for tile full life of the Europeans in a producer and consumer system which shall be free of usury and capitalism, of anarchy and communism. Within the wide region of our nation the genius of modern science shall join with the culture of three millennia to attain ever higher forms of European life which shall continue to be the inspiration of mankind.
What to make of this? I had no idea that there ever was a pro-European far right, for the simple reason that all the far-right groups that I know of in various Member States seem to be profoundly hostile toward the EU. And indeed you would expect that extreme nationalists would not like an organisation that reduces national sovereignty and facilitates immigration, etc. It is striking that this pro-European far right did not seem to enjoy any electoral success at the time, and certainly as far as I can see there are no traces of it today.
While I obviously don't agree with the policy platform of the NPE, I can see after reading it how a pro-European far-right policy can be envisaged -- their thinking being that it is a necessary evil (in their minds) to band together with some foreigners in order to more effectively exclude the less desirable 'foreigners' (some of whom, like black citizens, obviously aren't actually foreign, but of course the far-right don't see it that way).
The interesting thing is that just as there are pro- and anti-European wings of the more moderate shades of political opinion, and indeed of the far-left, there are/were both pro- and anti-European wings of the far-right. But it surely not suprising that the pro-European wing of the far right was unsuccessful and died out, because it was surely too much to ask for far-right supporters to compromise their 'ideal' of basic hatred of all foreigners in order to team up with some foreigners in order to exclude the remaining foreigners. These people are just too stupid and angry to grasp the subtlety of that argument -- which is why they are far-right supporters in the first place.
To get back to Stuart's specific comments, I could hardly be considered the 'new' Moseley since I entirely disagree with corporatism, autarky, kicking Americans out of Europe, shutting down the UN, or (in particular) reserving a third of Africa for white people or disenfranchising 'non-Europeans' who remain within Europe. Indeed, I doubt there is much support now for any of these views among the vast majority of people, whether they are Eurosceptic, Europhile or however they would describe themselves.
I also think that the NPE policy also would transfer too much power to the European level, although some Europhiles would support this. But since those Europhiles would not support key elements of the rest of the NPE policy, they should not be slurred by association.
Since the current EU, as it would be developed further by the Reform Treaty, hardly supports these policies either, I rather think that Mosely would be against it, and would therefore be considered a Eurosceptic. (I suspect he would also become a Eurosceptic anyway for tactical reasons, since a pro-European far-right position was just not viable). Could you really see him supporting, say, the new Article 10 of the Treaty on the Functioning of the Union -- 'In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on...racial or ethnic origin'? Never mind the power in the current Article 13 TEC to adopt legislation to combat racial discrimination.
As for Stuart's statement that 'Fans of the emerging EU State have some very nasty bedfellows in the foundation of their ideas', you might as well say that Open Europe is a bedfellow of the French National Front, because both of them strongly criticise the EU. But that is a stupid argument, as Open Europe and the National Front have nothing else in common. Equally it is stupid to say that supporters of the Reform Treaty are bedfellows of the far right, for exactly the same reasons.
I was told the first day I joined a university debating society that the moment I compared my opponents to Hitler, I had lost the debate, because my opponents were undoubtedly arguing for some policy far short of a thousand-year Reich and the Holocaust. Stuart, that was good advice.
The only real bedfellows of Mosely are those Conservatives of the 1960s/70s who would have backed his idea of reserving a third or so of Africa for Europeans and Afrikaaners. But again, today's Conservatives would hardly back this view and should not be slurred by the association of their predecessors with some of Mosely's ideas.
Almost finally -- I was overstating the case in saying that pure national parliamentary democracy is not feasible at all. Rather it is vastly less effective than qualified majority voting at achieving shared objectives such as the single market and the protection of the environment.
Right, it is not the 1950s, but then again the EEC has profoundly changed since then by means of multiple Treaty amendments -- as Eurosceptics find it convenient to point out when they want to make the case for a referendum. The point still stands that an EU of 27 states will be ineffective at accomplishing its key objectives without a lot of QMV.
Finally -- all this is quite a detour from my original post, which solely concerned Open Europe's claim that the British opt-out from policing and criminal law which appears in the draft Reform Treaty was already present in the Constituional Treaty. Again, this assertion is utterly false -- but they have continued to make it. See Neil O'Brien's Guardian comment piece of 31 August:
....The government also argues that the UK will have "opt outs" from all the significant bits.
One problem with this argument is that they are the same "opt outs" that were in the original constitution - on which the government promised a referendum....
online at: http://commentisfree.guardian.co.uk/neil_obrien/2007/08/dodging_the_ballots.html
A permanent Polish Advocate-General?
An interesting story on euobserver.com (story in italics, my comments in normal font):
Poland seeks EU court adviser post in treaty talks03.09.2007 - 17:23 CET By Mark BeundermanEUOBSERVER / BRUSSELS - Poland is demanding that it gets a permanent legal adviser to the European Court of Justice (ECJ) - a so-called advocate general - as part of ongoing talks on a new EU treaty. The ECJ currently has eight advocates-general, who are the EU court's highest advisers. Five of them are normally drawn from the EU's 'big five' states Germany, France, the UK, Italy and Spain, with the other three posts rotating between smaller member states.
Poland now wants to be treated on an equal footing with the big five, Polish EU treaty negotiator Marek Cichocki said."In my opinion this is about equal representation of Poland in the different EU institutions. Every country in the EU wants to keep an eye on its own particular issues in the institutions. This is only obvious and natural and this is why Poland wants to have a permanent representative."Before each ECJ ruling, one advocate-general issues a legal opinion, which is not binding, but in practice it is followed by judges in the majority of cases. Warsaw now wants the number of court advisers to be increased from eight to nine, allowing it to have its own permanent post. EU diplomats said Warsaw had raised the issue in Brussels, where member states' legal experts are currently studying a draft of the EU's new Reform Treaty.
In my view, we should look to be reducing the number of A-Gs, not increasing them, since their involvement in cases entails cost and delays and they are generally not necessary -- as proved by their absence from the Court of First Instance, Civil Service Tribunal, and 30% of ECJ judgments. But since cutting the numbers is not on the agenda at the moment, I guess adding just one more is not a tragedy, and it is reasonable enough to argue that Poland should be on the same footing as Spain.
The curious thing here is that Poland has linked this issue to the IGC, whereas the Treaty permits the Council, acting unanimously, to increase the number of A-Gs at any time (the Reform Treaty wouldn't alter this). So it makes no sense legally to ask for this change in the context of the IGC, since a Council decision increasing the numbers could instead take effect immediately and would not be subject to the risk of non-ratification, as the Reform Treaty will be. It may make sense politically though -- ie a Polish threat not to sign or ratify the Reform Treaty unless this further demand is made. Presumably it also makes good domestic politics to make further demands of the EU during an election campaign.
Foreign ministers will meet for a first political discussion on the draft in Portugal later this week. Poland's latest demand comes in addition to earlier concerns it had raised on the treaty draft - particularly on its voting weight in the EU council, member states' decision making body. Poland wants to see a reference in the treaty text to the so-called Ioannina mechanism, whereby it can delay an EU decision if its vital interests are at stake. But most member states only want to have the Ioannina clause mentioned in a separate declaration which has less legal status. "The main issue is the question where this mechanism is included," Mr Cichocki said. "Legally it has a bit lower value when it is put in a declaration. We would like it to be a little stronger." "I believe this will be decided at the political level," he added. Poland already fought hard for its voting rights at a bitter EU leaders summit in June, which saw a head-to-head clash between Warsaw and Berlin before an eleventh-hour deal on the treaty blueprint was reached. Warsaw is now also set to dominate part of the last round of treaty negotiations, which the Portuguese EU presidency wants to wrap up at an EU leaders meeting in October. The Poles are also still considering to opt out from the EU's Charter of Fundamental Rights, following the example of the UK which already secured an exemption from the rights charter at the June summit. Poland's embattled conservative government dislikes the charter for its supposed liberalism on moral issues, but at the same time it is under pressure from trade unions - who support the charter's social rights catalogue - to refrain from the opt-out."This will rather be decided in the last period of the IGC," said Mr Cichocki.
What should happen, in my view, is that the Treaty should provide a legal basis for the Decision on the delay in decision-making. Otherwise the Council Decision is just weird, because what power does the Council have to take it? And what if the Council wanted to amend or repeal it? The Decision should either be referred to in a new para in (say) Article 205 EC, or take the form of a separate Protocol.
As for the Charter, the Poles had explicitly reserved their decision on whether to join the British opt-out Protocol as part of the IGC mandate, so signing up to this Protocol would not constitute a new Polish demand for the IGC. It will look odd, though, that the birthplace of Solidarity will be signing up to a protocol that in particular specifies that Chapter IV of the Charter -- the 'solidarity' provisions! -- cannot raise social standards in national law. The Polish government would probably prefer to target the equality provisions in Chapter III of the Charter -- but I think a demand along these lines would not be well-received by other Member States.
Poland seeks EU court adviser post in treaty talks03.09.2007 - 17:23 CET By Mark BeundermanEUOBSERVER / BRUSSELS - Poland is demanding that it gets a permanent legal adviser to the European Court of Justice (ECJ) - a so-called advocate general - as part of ongoing talks on a new EU treaty. The ECJ currently has eight advocates-general, who are the EU court's highest advisers. Five of them are normally drawn from the EU's 'big five' states Germany, France, the UK, Italy and Spain, with the other three posts rotating between smaller member states.
Poland now wants to be treated on an equal footing with the big five, Polish EU treaty negotiator Marek Cichocki said."In my opinion this is about equal representation of Poland in the different EU institutions. Every country in the EU wants to keep an eye on its own particular issues in the institutions. This is only obvious and natural and this is why Poland wants to have a permanent representative."Before each ECJ ruling, one advocate-general issues a legal opinion, which is not binding, but in practice it is followed by judges in the majority of cases. Warsaw now wants the number of court advisers to be increased from eight to nine, allowing it to have its own permanent post. EU diplomats said Warsaw had raised the issue in Brussels, where member states' legal experts are currently studying a draft of the EU's new Reform Treaty.
In my view, we should look to be reducing the number of A-Gs, not increasing them, since their involvement in cases entails cost and delays and they are generally not necessary -- as proved by their absence from the Court of First Instance, Civil Service Tribunal, and 30% of ECJ judgments. But since cutting the numbers is not on the agenda at the moment, I guess adding just one more is not a tragedy, and it is reasonable enough to argue that Poland should be on the same footing as Spain.
The curious thing here is that Poland has linked this issue to the IGC, whereas the Treaty permits the Council, acting unanimously, to increase the number of A-Gs at any time (the Reform Treaty wouldn't alter this). So it makes no sense legally to ask for this change in the context of the IGC, since a Council decision increasing the numbers could instead take effect immediately and would not be subject to the risk of non-ratification, as the Reform Treaty will be. It may make sense politically though -- ie a Polish threat not to sign or ratify the Reform Treaty unless this further demand is made. Presumably it also makes good domestic politics to make further demands of the EU during an election campaign.
Foreign ministers will meet for a first political discussion on the draft in Portugal later this week. Poland's latest demand comes in addition to earlier concerns it had raised on the treaty draft - particularly on its voting weight in the EU council, member states' decision making body. Poland wants to see a reference in the treaty text to the so-called Ioannina mechanism, whereby it can delay an EU decision if its vital interests are at stake. But most member states only want to have the Ioannina clause mentioned in a separate declaration which has less legal status. "The main issue is the question where this mechanism is included," Mr Cichocki said. "Legally it has a bit lower value when it is put in a declaration. We would like it to be a little stronger." "I believe this will be decided at the political level," he added. Poland already fought hard for its voting rights at a bitter EU leaders summit in June, which saw a head-to-head clash between Warsaw and Berlin before an eleventh-hour deal on the treaty blueprint was reached. Warsaw is now also set to dominate part of the last round of treaty negotiations, which the Portuguese EU presidency wants to wrap up at an EU leaders meeting in October. The Poles are also still considering to opt out from the EU's Charter of Fundamental Rights, following the example of the UK which already secured an exemption from the rights charter at the June summit. Poland's embattled conservative government dislikes the charter for its supposed liberalism on moral issues, but at the same time it is under pressure from trade unions - who support the charter's social rights catalogue - to refrain from the opt-out."This will rather be decided in the last period of the IGC," said Mr Cichocki.
What should happen, in my view, is that the Treaty should provide a legal basis for the Decision on the delay in decision-making. Otherwise the Council Decision is just weird, because what power does the Council have to take it? And what if the Council wanted to amend or repeal it? The Decision should either be referred to in a new para in (say) Article 205 EC, or take the form of a separate Protocol.
As for the Charter, the Poles had explicitly reserved their decision on whether to join the British opt-out Protocol as part of the IGC mandate, so signing up to this Protocol would not constitute a new Polish demand for the IGC. It will look odd, though, that the birthplace of Solidarity will be signing up to a protocol that in particular specifies that Chapter IV of the Charter -- the 'solidarity' provisions! -- cannot raise social standards in national law. The Polish government would probably prefer to target the equality provisions in Chapter III of the Charter -- but I think a demand along these lines would not be well-received by other Member States.
Tuesday, 28 August 2007
The Labour rebels' agenda: an analysis
According to today's Daily Telegraph, 'Labour MPs' (by which they mean some Labour MPs) have a list of 12 changes they want to see to the Reform Treaty. Let's look at these in turn (I am using the Telegraph's description of this agenda -- it is possible that there is an official version of this agenda which is more precise or differently worded in some respects. I can't find one on Ian Davidson's website).
The point I want to examine in particular is how much scope there might be to re-open negotiations on any of these points -- although I doubt that an attempt to renegotiate any point will be well received by other Member States.
1) 'keep policing and criminal justice away from the Court of Justice'. Read literally, this is a stupid position to take, since the Court of Justice already has jurisdiction in these areas. Presumably the rebels' point is that the UK should keep its current opt-out as regards references from its national courts on these issues. The UK could perhaps argue that all Member States should retain such an opt-out (about half of them have used it), or at least that the UK (and perhaps Ireland) alone should have such an opt-out. A compromise position could be that the UK could be permitted to restrict references to final courts only (and perhaps even make references optional for final courts).
Of course, judgments of the Court following references from other Member States' courts would have the force of precedent in the UK -- unless the European Communities Act makes clear that (as at present) the precedential effect of Court rulings does not apply in this area. There would still be a persuasive effect of Court of Justice rulings on the UK courts, but that is already the case under the current regime -- ie the House of Lords has already followed the Pupino judgment on the indirect effect of framework decisions.
One thing the UK could do unilaterally, even without changing the text of the Reform Treaty, is to specify in the European Communities Act that judgments of the Court of Justice in this area would only have persuasive effect, unless the reference came from a UK court. After all, there is no obligation in EU law to provide for such a strong precedential effect of Court of Justice judgments as the European Communities Act provides for. A more radical unilateral move would be to specify in the Act that in all cases, judgments of the Court of Justice only have persuasive effect, unless the reference came from a UK court.
But there is also the separate issue of jurisdiction over infringement actions, which the Reform Treaty would introduce. It would be hard to argue that other Member States, but not the UK, should be subject to this jurisdiction.
conclusion: a total opt-out for the UK from jurisdiction over references should satisfy the critics (although they might still whinge about the jurisdiction over infringement actions. God forbid that the UK should have to implement measures it has opted into!). It seems hard to believe that this significant concession could now be extracted from the other Member States, having already extracted the UK's opt out from legislation in this area. The government could propose that the European Communities Act will limit the effect of Court of Justice judgments in this area, or more generally.
2) 'prevent the Court using EU competition law to undermine public services'. The Reform Treaty includes a Protocol on the 'public services' clause, which was not found in the Constitutional Treaty, which Eurosceptic groups like Open Europe tend not to refer to. I cannot judge the effect of this Protocol, as I am not a competition lawyer.
conclusion: The government could either make more noise about the existence of this Protocol (which perhaps has been overlooked in this country because it was a Dutch 'red line', not the UK's), or (more implausibly) seek to get it amended (or at least clarified in a declaration) if it is felt to be insufficient on this point.
3) 'scrap the new post of EU foreign policy chief and the EU diplomatic service'. This is an obvious deal-breaker that other EU Member States will not agree to unless the ratification process of the Reform Treaty collapses entirely (and perhaps not even then). The best that could be hoped for here, falling short of a veto, is to clarify and ideally weaken the post. It could be specified that the Member States may, not shall, ask that the High Representative speak in the Security Council on the EU's behalf. It could also become an option only that the High Representative will chair the External Relations Council. It could be specified more clearly that the High Representative can only act within the limits set by the Member States' foreign ministers, and that national diplomatic services are retained and not replaced by the EU service (in fact the Treaty refers to national diplomatic services several times expressly; the EU service consists of seconded staff only. But the point could be made clearer to satisfy the critics).
It is clear, from an objective viewpoint, that in the IGC mandate the goverment got a 'good deal' as regards policing and criminal law and the Charter, but didn't get much (apart from a specific clause on data protection and the limitation of the scope of Article 308 EC) as regards foreign policy. (Of course, the critics will never admit that the UK got a good deal on anything, and the government will never admit that it had to compromise its position on anything).
Anyway, it is often forgotten that Article 23(1) EU allows any Member State just to opt out of any foreign policy decision. This will be retained by the Reform Treaty. Perhaps the government should make more of this clause.
conclusion: a radical change of the text is impossible, but it is possible that clarifications regarding the High Representative and external acton service could be agreed, and (more unlikely) that the High Representative's wings could be clipped.
4) 'Member States to regain international aid budgets'. Read literally, this is claptrap -- in the Reform Treaty, international aid is a shared but parallel competence, as it is at present (meaning the UK can give as much or little aid as it likes to developing countries, regardless of what the EU does). Perhaps the point is that the Member States should regain exclusive competence over international aid -- this is an unrealistic position to take, since killing the Reform Treaty would leave us with the status quo on this point, ie shared but parallel competence. So killing the Reform Treaty would not accomplish this objective.
Anway, shared but parallel competence means that this is additional aid given to developing countries by the EU on top of national budgets. So if the EU's development aid powers are abolished, total aid flows to developing countries will be cut, unless you believe that all this aid is stolen by Commission officials (which would surely have been noticed by the Court of Auditors by now!), or that Member States would agree that they will make up from their national aid budgets all the EU aid that will be cut. How likely is that? Are the Labour rebels seriously supporting a cut in aid to developing countries?
Or perhaps the point is that Member States should retain control over a particular aid fund, the EDF, which is implicitly the subject of a particular clause in the current Treaty, which would be abolished by the Reform Treaty. It is not clear anyway whether this particular clause guarantees the continuance of Member States' control over this fund, or how the legal position would change if it were dropped.
conclusion: hard to judge since the rebels' position is unclear -- but that may be the fault of the Telegraph.
5) 'scrap new rules that allow a 'passerelle' to further majority voting without treaty amendments': a weak argument, since the application of the new general passerelle clause would be subject to unanimity of Member States and the prospect for national parliaments to block the process within the six months of the decision.
conclusion: easy to address this concern by an amendment to the European Communities Act specifying that the UK government will withhold final consent to the use of any passerelle (ie including the specific passerelles relating to social policy, environmental law, family law, the financial framework and foreign policy -- only the last two are new) unless both Houses of Parliament have voted in favour
6) 'drop plans for further extension of majority voting and stick with the provisons agreed at Nice in 2000': this appears to confuse the separate issues of the scope of majority voting and the mechanism for majority voting (again this may be the fault of the Telegraph). Since the UK has an opt-out or emergency brake over all the signficant extensions of QMV in the Reform Treaty (ie legal migration, foreign policy, policing and criminal law, aspects of monetary union, social security, expanded competence over other aspects of immigration, asylum and civil law), further objections would be a particularly difficult sell to other Member States -- although it would be useful to specify expressly that when the European Council is asked to deal with an issue after an emergency brake has been pulled, it must act by unanimity, rather than by 'consensus', which is not defined. Or alternatively, the Treaty should define 'consensus'.
This point is anyway irrelevant for foreign policy, where the Treaty specifies that the European Council should act unanimously if the emergency brake is pulled. But it would be better to specify expressly that when the European Council asks the High Representative to make a proposal, which in turn triggers QMV, the European Council acts by unanimity, not consensus (or again, alternatively, define 'consensus'.
As for the mechanism for majority voting, this is perhaps the single most difficult issue in the Treaty, and Poland only managed to get a (significant) delay in application of the new rules. While a better rule more favourable to the UK could be imagined, as I have set out in previous posts, it is hard to imagine that this issue could be reopened again, at least to the extent of giving up on any change. Rather the government could point out that the changes obtained by Poland also work to the advantage of the UK, in delaying the dilution of our ability to form blocking minorities as well (albeit at the cost of making it harder during that time to put together a majority in favour of a proposal in the UK's interests). Anyway, I suspect many Labour MPs and trade unions would want to see the UK outvoted on the working time and temporary workers' directives...have they thought their position through?
conclusion: a clarification/amendment regarding the functioning of emergency brakes is perhaps just about possible -- for the rest, dream on
7) 'drop plans for a list of areas of shared competence': what a load of cobblers. The EU and Member States already share competence over a large number of areas and the list of shared competences in the Reform Treaty essentially confirms this. If the clause listing the shared competences is dropped, this would be purely cosmetic; if the UK actually is going to spend political capital trying to obtain further changes to the text it would be mad to spend it on changes that are purely cosmetic, rather than substantive changes. Dropping this clause would not change the status quo.
Is the idea that the EU's action should be limited to areas of exclusive competence? Or that Member States can pre-empt the EU in areas of shared competence? Either way the EU would be so ineffective that there would be no point to its existence. Advocates of this position simply need a short explanation of EU law. If they still maintain their position after that then they are just being intellectually dishonest -- they should simply be calling for UK withdrawal from the EU.
conclusion: learn some EU law
8) 'return powers over regional spending to national governments': is the idea to scrap the EU's state aid rules, its regional policy, or both? Would this be helpful to UK businesses competing with state-funded adversaries from other Member States, or the beneficiaries of EU aid in the UK?
In any case the argument is strategically stupid -- because the Reform Treaty does not alter the rules on regional policy whatsoever. So rejecting it would make no change in the status quo on this point.
conclusion: the rebels should make sure that they are shooting at the right target, and indeed that they are not shooting at themselves
9) 'enable the government to 'automatically' deport foreign criminals': again (*sigh*) the Reform Treaty has nothing do with this. so rejecting it would make no change in the status quo on this point. The rules stem from legislation originally dating before we joined the EEC, and case law and legislation since.
conclusion: learn some more EU law
10) 'scrap plans to deprive national voting rights if they breach EU economic rules': well, so what? Voting on sanctions against naughty Member States is by QMV, so the accused State does not have a veto, and the sanctions (for non-participants in monetary union) are toothless anyway. Even for eurozone Member States, the sanctions are toothless since France and Germany gutted the Stability Pact in 2003.
conclusion: why bother? We might as well insist on legislation banning flea bites.
11) 'abandon plans to give Brussels the power to determine composition of the European Commission': what on earth does this refer to? Are the rebel MPs confused or just the Telegraph?
If this refers to the appointment of the Commission President, the Reform Treaty basically confirms the status quo that the EU leaders choose a candidate and the EP votes for or against the candidate. OK, the Treaty states that the EP is 'electing' the President and that the selection must 'take account' of EP elections, so the EP may be more pushy about using its powers. But it could, and probably will, get gradually pushier at using the powers it has already, even though they are described differently. So changing this would not alter the status quo.
Does it refer to the selection of other Commissioners? The Reform Treaty confirms the status quo that they must be selected on the basis of national proposals, and then approved by the Commission President-elect, and then the whole Commission must be approved by the EP and Council. So rejecting this changes nothing.
Is the objection to the cut in the number of Commissioners? The existing Treaty requires them to be cut from 2009, whereas the Reform Treaty delays this until 2014, and gives the Member States the option to alter the numbers of Commissioners. So rejecting the Reform Treaty wouldn't alter the fundamentals of the status quo -- rather it would bring forward the cut in the number of Commissioners.
Is the objection to the power of EU leaders to determine the criteria for rotation of Commissioners? Again the current Treaty provides for this power, requires its use from 2009 rather than 2014, and gives EU leaders carte blanche over the criteria, whereas the Reform Treaty specifies some criteria. Anyway Member States have a veto agreeing on the criteria.
Is the objection to the power of EU leaders to alter the number of Commissioners? Well, rejecting this clause would alter the status quo -- since under the current Treaties the number of Commissioners must be cut from 2009 and there is no power to alter this. But isn't it better to have flexibility over the number of Commissioners, considering that each Member State has a veto on this issue? Anyway such a power existed throughout the history of the EU until 2004 -- it hardly seems worth dying in a ditch for.
conclusion: sort yourselves out
12) 'retain national veto over trade agreements relating to public services' -- This is a valid argument, although again it is difficult to see how the Treaty could easily be renegotiated on this point now the IGC mandate has been agreed.
conclusion: there is a case for this, but is this a realistic objective?
It is interesting to note that the Labour MEPs are not raising an issue about the Charter opt-out. Rather the unions are objecting to the opt-out. But it is hard to see how a referendum on the Treaty, which is sure to produce a 'no' vote, will secure the objective of increasing social rights in the UK. Rather it is likely to kill the Treaty dead, and I can't see how more social rights would arise like a phoenix from the Treaty's ashes. A referendum on the Treaty without the Charter opt-out (ie supposedly with the social rights) would surely produce a 'no' vote as well, indeed probably a bigger one because the British public, apart from the unions, have been convinced that the Charter would murder us all in our beds.
Anyway, have the unions actually taken competent legal advice as to whether a fully binding Charter would in fact achieve anything at all for them? Is Article 51 of the Charter, and the constant jurisprudence of the Court of Justice limiting the scope of the general principles of EC law, totally meaningless?
Furthermore the rebels make no issue about the legal personality of the EU, or the president of the European Council, or the EU's criminal law powers. So they do show some sense on these points (see my previous posts on these non-issues).
Also, there is no mention of the opt-outs from policing and criminal law, although the chief supporter of these demands, Ian Davidson, is quoted on the BBC site as saying that the Court of Justice would not respect them. Again, if our opt-outs are not respected by the EU, how come we have not been forced to accept monetary union, the abolition of border controls or the EU immigration legislation that we have opted out of?
Overall conclusion: points 4, 7, 8, 9 and 11 are just confused and vetoing the Reform Treaty on these grounds would not change the status quo. Point 5 is already covered by sufficient safeguards -- the European Communities Act could clarify its application in national law. Point 10 is not worth fighting.
This leaves points 1, 2, 3, 6 and 12, where it is just about imaginable that the government could get clarifications or even changes to the text as regards 1, 2 and 3 (but not as much as the rebels want as regard points 1 and 3) but little chance that they could get much as regards points 6 and 12. If the government is, say, able to get an opt-out or a limitation regarding the Court's jurisdiction over policing and criminal law, and further able to get the High Representative's wings clipped, will there still be 120 Labour MPs (assuming there are really that many already) so keen to demand a referendum that would work in practice to the benefit of the Conservative Party?
The point I want to examine in particular is how much scope there might be to re-open negotiations on any of these points -- although I doubt that an attempt to renegotiate any point will be well received by other Member States.
1) 'keep policing and criminal justice away from the Court of Justice'. Read literally, this is a stupid position to take, since the Court of Justice already has jurisdiction in these areas. Presumably the rebels' point is that the UK should keep its current opt-out as regards references from its national courts on these issues. The UK could perhaps argue that all Member States should retain such an opt-out (about half of them have used it), or at least that the UK (and perhaps Ireland) alone should have such an opt-out. A compromise position could be that the UK could be permitted to restrict references to final courts only (and perhaps even make references optional for final courts).
Of course, judgments of the Court following references from other Member States' courts would have the force of precedent in the UK -- unless the European Communities Act makes clear that (as at present) the precedential effect of Court rulings does not apply in this area. There would still be a persuasive effect of Court of Justice rulings on the UK courts, but that is already the case under the current regime -- ie the House of Lords has already followed the Pupino judgment on the indirect effect of framework decisions.
One thing the UK could do unilaterally, even without changing the text of the Reform Treaty, is to specify in the European Communities Act that judgments of the Court of Justice in this area would only have persuasive effect, unless the reference came from a UK court. After all, there is no obligation in EU law to provide for such a strong precedential effect of Court of Justice judgments as the European Communities Act provides for. A more radical unilateral move would be to specify in the Act that in all cases, judgments of the Court of Justice only have persuasive effect, unless the reference came from a UK court.
But there is also the separate issue of jurisdiction over infringement actions, which the Reform Treaty would introduce. It would be hard to argue that other Member States, but not the UK, should be subject to this jurisdiction.
conclusion: a total opt-out for the UK from jurisdiction over references should satisfy the critics (although they might still whinge about the jurisdiction over infringement actions. God forbid that the UK should have to implement measures it has opted into!). It seems hard to believe that this significant concession could now be extracted from the other Member States, having already extracted the UK's opt out from legislation in this area. The government could propose that the European Communities Act will limit the effect of Court of Justice judgments in this area, or more generally.
2) 'prevent the Court using EU competition law to undermine public services'. The Reform Treaty includes a Protocol on the 'public services' clause, which was not found in the Constitutional Treaty, which Eurosceptic groups like Open Europe tend not to refer to. I cannot judge the effect of this Protocol, as I am not a competition lawyer.
conclusion: The government could either make more noise about the existence of this Protocol (which perhaps has been overlooked in this country because it was a Dutch 'red line', not the UK's), or (more implausibly) seek to get it amended (or at least clarified in a declaration) if it is felt to be insufficient on this point.
3) 'scrap the new post of EU foreign policy chief and the EU diplomatic service'. This is an obvious deal-breaker that other EU Member States will not agree to unless the ratification process of the Reform Treaty collapses entirely (and perhaps not even then). The best that could be hoped for here, falling short of a veto, is to clarify and ideally weaken the post. It could be specified that the Member States may, not shall, ask that the High Representative speak in the Security Council on the EU's behalf. It could also become an option only that the High Representative will chair the External Relations Council. It could be specified more clearly that the High Representative can only act within the limits set by the Member States' foreign ministers, and that national diplomatic services are retained and not replaced by the EU service (in fact the Treaty refers to national diplomatic services several times expressly; the EU service consists of seconded staff only. But the point could be made clearer to satisfy the critics).
It is clear, from an objective viewpoint, that in the IGC mandate the goverment got a 'good deal' as regards policing and criminal law and the Charter, but didn't get much (apart from a specific clause on data protection and the limitation of the scope of Article 308 EC) as regards foreign policy. (Of course, the critics will never admit that the UK got a good deal on anything, and the government will never admit that it had to compromise its position on anything).
Anyway, it is often forgotten that Article 23(1) EU allows any Member State just to opt out of any foreign policy decision. This will be retained by the Reform Treaty. Perhaps the government should make more of this clause.
conclusion: a radical change of the text is impossible, but it is possible that clarifications regarding the High Representative and external acton service could be agreed, and (more unlikely) that the High Representative's wings could be clipped.
4) 'Member States to regain international aid budgets'. Read literally, this is claptrap -- in the Reform Treaty, international aid is a shared but parallel competence, as it is at present (meaning the UK can give as much or little aid as it likes to developing countries, regardless of what the EU does). Perhaps the point is that the Member States should regain exclusive competence over international aid -- this is an unrealistic position to take, since killing the Reform Treaty would leave us with the status quo on this point, ie shared but parallel competence. So killing the Reform Treaty would not accomplish this objective.
Anway, shared but parallel competence means that this is additional aid given to developing countries by the EU on top of national budgets. So if the EU's development aid powers are abolished, total aid flows to developing countries will be cut, unless you believe that all this aid is stolen by Commission officials (which would surely have been noticed by the Court of Auditors by now!), or that Member States would agree that they will make up from their national aid budgets all the EU aid that will be cut. How likely is that? Are the Labour rebels seriously supporting a cut in aid to developing countries?
Or perhaps the point is that Member States should retain control over a particular aid fund, the EDF, which is implicitly the subject of a particular clause in the current Treaty, which would be abolished by the Reform Treaty. It is not clear anyway whether this particular clause guarantees the continuance of Member States' control over this fund, or how the legal position would change if it were dropped.
conclusion: hard to judge since the rebels' position is unclear -- but that may be the fault of the Telegraph.
5) 'scrap new rules that allow a 'passerelle' to further majority voting without treaty amendments': a weak argument, since the application of the new general passerelle clause would be subject to unanimity of Member States and the prospect for national parliaments to block the process within the six months of the decision.
conclusion: easy to address this concern by an amendment to the European Communities Act specifying that the UK government will withhold final consent to the use of any passerelle (ie including the specific passerelles relating to social policy, environmental law, family law, the financial framework and foreign policy -- only the last two are new) unless both Houses of Parliament have voted in favour
6) 'drop plans for further extension of majority voting and stick with the provisons agreed at Nice in 2000': this appears to confuse the separate issues of the scope of majority voting and the mechanism for majority voting (again this may be the fault of the Telegraph). Since the UK has an opt-out or emergency brake over all the signficant extensions of QMV in the Reform Treaty (ie legal migration, foreign policy, policing and criminal law, aspects of monetary union, social security, expanded competence over other aspects of immigration, asylum and civil law), further objections would be a particularly difficult sell to other Member States -- although it would be useful to specify expressly that when the European Council is asked to deal with an issue after an emergency brake has been pulled, it must act by unanimity, rather than by 'consensus', which is not defined. Or alternatively, the Treaty should define 'consensus'.
This point is anyway irrelevant for foreign policy, where the Treaty specifies that the European Council should act unanimously if the emergency brake is pulled. But it would be better to specify expressly that when the European Council asks the High Representative to make a proposal, which in turn triggers QMV, the European Council acts by unanimity, not consensus (or again, alternatively, define 'consensus'.
As for the mechanism for majority voting, this is perhaps the single most difficult issue in the Treaty, and Poland only managed to get a (significant) delay in application of the new rules. While a better rule more favourable to the UK could be imagined, as I have set out in previous posts, it is hard to imagine that this issue could be reopened again, at least to the extent of giving up on any change. Rather the government could point out that the changes obtained by Poland also work to the advantage of the UK, in delaying the dilution of our ability to form blocking minorities as well (albeit at the cost of making it harder during that time to put together a majority in favour of a proposal in the UK's interests). Anyway, I suspect many Labour MPs and trade unions would want to see the UK outvoted on the working time and temporary workers' directives...have they thought their position through?
conclusion: a clarification/amendment regarding the functioning of emergency brakes is perhaps just about possible -- for the rest, dream on
7) 'drop plans for a list of areas of shared competence': what a load of cobblers. The EU and Member States already share competence over a large number of areas and the list of shared competences in the Reform Treaty essentially confirms this. If the clause listing the shared competences is dropped, this would be purely cosmetic; if the UK actually is going to spend political capital trying to obtain further changes to the text it would be mad to spend it on changes that are purely cosmetic, rather than substantive changes. Dropping this clause would not change the status quo.
Is the idea that the EU's action should be limited to areas of exclusive competence? Or that Member States can pre-empt the EU in areas of shared competence? Either way the EU would be so ineffective that there would be no point to its existence. Advocates of this position simply need a short explanation of EU law. If they still maintain their position after that then they are just being intellectually dishonest -- they should simply be calling for UK withdrawal from the EU.
conclusion: learn some EU law
8) 'return powers over regional spending to national governments': is the idea to scrap the EU's state aid rules, its regional policy, or both? Would this be helpful to UK businesses competing with state-funded adversaries from other Member States, or the beneficiaries of EU aid in the UK?
In any case the argument is strategically stupid -- because the Reform Treaty does not alter the rules on regional policy whatsoever. So rejecting it would make no change in the status quo on this point.
conclusion: the rebels should make sure that they are shooting at the right target, and indeed that they are not shooting at themselves
9) 'enable the government to 'automatically' deport foreign criminals': again (*sigh*) the Reform Treaty has nothing do with this. so rejecting it would make no change in the status quo on this point. The rules stem from legislation originally dating before we joined the EEC, and case law and legislation since.
conclusion: learn some more EU law
10) 'scrap plans to deprive national voting rights if they breach EU economic rules': well, so what? Voting on sanctions against naughty Member States is by QMV, so the accused State does not have a veto, and the sanctions (for non-participants in monetary union) are toothless anyway. Even for eurozone Member States, the sanctions are toothless since France and Germany gutted the Stability Pact in 2003.
conclusion: why bother? We might as well insist on legislation banning flea bites.
11) 'abandon plans to give Brussels the power to determine composition of the European Commission': what on earth does this refer to? Are the rebel MPs confused or just the Telegraph?
If this refers to the appointment of the Commission President, the Reform Treaty basically confirms the status quo that the EU leaders choose a candidate and the EP votes for or against the candidate. OK, the Treaty states that the EP is 'electing' the President and that the selection must 'take account' of EP elections, so the EP may be more pushy about using its powers. But it could, and probably will, get gradually pushier at using the powers it has already, even though they are described differently. So changing this would not alter the status quo.
Does it refer to the selection of other Commissioners? The Reform Treaty confirms the status quo that they must be selected on the basis of national proposals, and then approved by the Commission President-elect, and then the whole Commission must be approved by the EP and Council. So rejecting this changes nothing.
Is the objection to the cut in the number of Commissioners? The existing Treaty requires them to be cut from 2009, whereas the Reform Treaty delays this until 2014, and gives the Member States the option to alter the numbers of Commissioners. So rejecting the Reform Treaty wouldn't alter the fundamentals of the status quo -- rather it would bring forward the cut in the number of Commissioners.
Is the objection to the power of EU leaders to determine the criteria for rotation of Commissioners? Again the current Treaty provides for this power, requires its use from 2009 rather than 2014, and gives EU leaders carte blanche over the criteria, whereas the Reform Treaty specifies some criteria. Anyway Member States have a veto agreeing on the criteria.
Is the objection to the power of EU leaders to alter the number of Commissioners? Well, rejecting this clause would alter the status quo -- since under the current Treaties the number of Commissioners must be cut from 2009 and there is no power to alter this. But isn't it better to have flexibility over the number of Commissioners, considering that each Member State has a veto on this issue? Anyway such a power existed throughout the history of the EU until 2004 -- it hardly seems worth dying in a ditch for.
conclusion: sort yourselves out
12) 'retain national veto over trade agreements relating to public services' -- This is a valid argument, although again it is difficult to see how the Treaty could easily be renegotiated on this point now the IGC mandate has been agreed.
conclusion: there is a case for this, but is this a realistic objective?
It is interesting to note that the Labour MEPs are not raising an issue about the Charter opt-out. Rather the unions are objecting to the opt-out. But it is hard to see how a referendum on the Treaty, which is sure to produce a 'no' vote, will secure the objective of increasing social rights in the UK. Rather it is likely to kill the Treaty dead, and I can't see how more social rights would arise like a phoenix from the Treaty's ashes. A referendum on the Treaty without the Charter opt-out (ie supposedly with the social rights) would surely produce a 'no' vote as well, indeed probably a bigger one because the British public, apart from the unions, have been convinced that the Charter would murder us all in our beds.
Anyway, have the unions actually taken competent legal advice as to whether a fully binding Charter would in fact achieve anything at all for them? Is Article 51 of the Charter, and the constant jurisprudence of the Court of Justice limiting the scope of the general principles of EC law, totally meaningless?
Furthermore the rebels make no issue about the legal personality of the EU, or the president of the European Council, or the EU's criminal law powers. So they do show some sense on these points (see my previous posts on these non-issues).
Also, there is no mention of the opt-outs from policing and criminal law, although the chief supporter of these demands, Ian Davidson, is quoted on the BBC site as saying that the Court of Justice would not respect them. Again, if our opt-outs are not respected by the EU, how come we have not been forced to accept monetary union, the abolition of border controls or the EU immigration legislation that we have opted out of?
Overall conclusion: points 4, 7, 8, 9 and 11 are just confused and vetoing the Reform Treaty on these grounds would not change the status quo. Point 5 is already covered by sufficient safeguards -- the European Communities Act could clarify its application in national law. Point 10 is not worth fighting.
This leaves points 1, 2, 3, 6 and 12, where it is just about imaginable that the government could get clarifications or even changes to the text as regards 1, 2 and 3 (but not as much as the rebels want as regard points 1 and 3) but little chance that they could get much as regards points 6 and 12. If the government is, say, able to get an opt-out or a limitation regarding the Court's jurisdiction over policing and criminal law, and further able to get the High Representative's wings clipped, will there still be 120 Labour MPs (assuming there are really that many already) so keen to demand a referendum that would work in practice to the benefit of the Conservative Party?
The Eurosceptic Labour rebellion
As I had suggested during the run-up to the agreement on the IGC mandate in June, it has provided politically difficult for the UK government to justify a U-turn on holding a referendum on the deal on the Reform Treaty, since it preserves a very large proportion of the Constitutional Treaty. The critics are, of course, exaggerating the extent of the similarity -- ignoring, in particular, the new opt-out on policing and criminal law which the government has secured -- but the fundamental point that the two treaties are otherwise very similar (although not identical) is valid.
While it is possible to argue that the two new opt-outs (on policing and criminal law and the Charter) are sufficient to justify the U-turn, this argument does not seem to be proving successful in practice -- in part surely because groups like Open Europe are lying about the new opt-out on policing and criminal law. Also, the critics who thought that the safeguards attached to the Charter were ineffective are insisting that the further safeguards provided by the new UK Protocol on this issue are ineffective too. Although neither argument is convincing in light of the Court of Justice's record on the Charter and on limiting the scope of human rights as general principles of EU law, the fact remains that this new Protocol is not defusing calls for a referendum.
Anyway, the government's anti-Charter position is irritating trade unions -- so it is trapped between its desire to please business critics of the Charter and its desire to please its trade union supporters. Both sides are wrong in their assumptions that the Charter would change the status quo as regards the protection of social rights in EU law -- but it is hard to convince them of that, and hard to prove what would happen in the event that the Treaty was ratified.
If there really are significant numbers of Labour MPs willing to vote for a referendum, as the press suggests, there are several options open to the government.
a) give in and call a referendum. This would damage the government's relations with its European partners, who might feel compelled (as in 2004/05) to call their own difficult referendums in turn and in any event, since the UK demanded changes to the Treaty in order to avoid a referendum, consider that the UK has reneged on the 'deal' in June (ie, you can have some Treaty changes in return for not calling a referendum). A massive loss in the referendum would also then perhaps be difficult politically for the government to recover from.
b) call an election. This is attractive since the Labour party is well ahead in the polls, although this support might prove soft. There is a risk that the election will itself become regarded as a referendum on the Treaty or that the polls which show that significant numbers of Labour voters would change their vote on the referendum issue are correct. (Then again, if so many voters are annoyed about this issue, why has the government built up a significant polling lead over the last two months?). The other downside for Labour in calling an election is that the party is strapped for cash.
c) demand major changes to the Treaty along the lines of the arguments made by the Labour rebels. This would again irritate the government's partners in light of the deal in June, and they would be unlikely to make major concessions. So either the government would have to soldier on with a handful of minor concessions, or veto the Treaty -- having signed up to a deal in June. (Of course, it was Blair, not Brown, who signed up to the deal, although partner governments will still perceive any demand for renegotiation by the UK as duplicitous).
Minor concessions would only satisfy a few of the critics. On the other hand, a veto would delight a lot of public opinion in the UK but it would take some time to restore relations with the government's European partners. In fact it is very likely that if the UK vetoed the Reform Treaty, having already signed up to a negotiation mandate in June, other Member States would very seriously consider the possibility of going ahead without the UK in some way, potentially by denouncing the existing Treaties.
I will comment in a separate post about what minor concessions could be achieved, and about the agenda of the Labour rebels.
d) wait and see if a Polish election, or a referendum in Ireland or possibly the Netherlands or elsewhere, might kill the Treaty, as was the case in 2005. If not, then at least the government will be able to rely on the argument that if the UK is the last to ratify, then failure to ratify will mean de facto departure from the EU. I doubt this, by itself, would convince enough voters in a referendum or quite enough MPs to work, though. And there will not be much time to wait if other Member States are serious about ratifying the Treaty by early in 2009; this scenario also means that the government may be reluctant to call an election in what would otherwise be favourable political circumstances.
The way forward The easiest path may be to combine c) and d), trying to get some concessions while waiting to see if someone else kills the Treaty or successfully demands to renegotiate it. Furthermore, the government also has other titbits that it can offer its rebels and trade unions, and other distractions which can be offered to the public. However, politics can develop a certain momentum and it is entirely possible that a hard choice between calling an election, holding a referendum or vetoing the Treaty will be unavoidable before too long.
All this could have been avoided if, as I argued in the spring, the EU leaders had agreed a rather more modest negotiating mandate that departed more significantly from the Constitutional Treaty and could not so easily be presented (partly truthfully) by critics as an attempt to sneak the Constitutional Treaty past the public again with purely cosmetic changes. But now the mandate has been agreed, it is hard to see how the EU could be brought around to that position without vetoes or referendum defeats for the Reform Treaty.
Let's hope that the third time around at a new Treaty, if the second attempt fails (as is starting to look likely) the maximalists will have the good grace to admit that their strategy has failed and indeed damaged the EU, and accept that the way forward is to proceed with more modest Treaty amendments that are closer to the grain of public opinion in the more Eurosceptic Member States.
While it is possible to argue that the two new opt-outs (on policing and criminal law and the Charter) are sufficient to justify the U-turn, this argument does not seem to be proving successful in practice -- in part surely because groups like Open Europe are lying about the new opt-out on policing and criminal law. Also, the critics who thought that the safeguards attached to the Charter were ineffective are insisting that the further safeguards provided by the new UK Protocol on this issue are ineffective too. Although neither argument is convincing in light of the Court of Justice's record on the Charter and on limiting the scope of human rights as general principles of EU law, the fact remains that this new Protocol is not defusing calls for a referendum.
Anyway, the government's anti-Charter position is irritating trade unions -- so it is trapped between its desire to please business critics of the Charter and its desire to please its trade union supporters. Both sides are wrong in their assumptions that the Charter would change the status quo as regards the protection of social rights in EU law -- but it is hard to convince them of that, and hard to prove what would happen in the event that the Treaty was ratified.
If there really are significant numbers of Labour MPs willing to vote for a referendum, as the press suggests, there are several options open to the government.
a) give in and call a referendum. This would damage the government's relations with its European partners, who might feel compelled (as in 2004/05) to call their own difficult referendums in turn and in any event, since the UK demanded changes to the Treaty in order to avoid a referendum, consider that the UK has reneged on the 'deal' in June (ie, you can have some Treaty changes in return for not calling a referendum). A massive loss in the referendum would also then perhaps be difficult politically for the government to recover from.
b) call an election. This is attractive since the Labour party is well ahead in the polls, although this support might prove soft. There is a risk that the election will itself become regarded as a referendum on the Treaty or that the polls which show that significant numbers of Labour voters would change their vote on the referendum issue are correct. (Then again, if so many voters are annoyed about this issue, why has the government built up a significant polling lead over the last two months?). The other downside for Labour in calling an election is that the party is strapped for cash.
c) demand major changes to the Treaty along the lines of the arguments made by the Labour rebels. This would again irritate the government's partners in light of the deal in June, and they would be unlikely to make major concessions. So either the government would have to soldier on with a handful of minor concessions, or veto the Treaty -- having signed up to a deal in June. (Of course, it was Blair, not Brown, who signed up to the deal, although partner governments will still perceive any demand for renegotiation by the UK as duplicitous).
Minor concessions would only satisfy a few of the critics. On the other hand, a veto would delight a lot of public opinion in the UK but it would take some time to restore relations with the government's European partners. In fact it is very likely that if the UK vetoed the Reform Treaty, having already signed up to a negotiation mandate in June, other Member States would very seriously consider the possibility of going ahead without the UK in some way, potentially by denouncing the existing Treaties.
I will comment in a separate post about what minor concessions could be achieved, and about the agenda of the Labour rebels.
d) wait and see if a Polish election, or a referendum in Ireland or possibly the Netherlands or elsewhere, might kill the Treaty, as was the case in 2005. If not, then at least the government will be able to rely on the argument that if the UK is the last to ratify, then failure to ratify will mean de facto departure from the EU. I doubt this, by itself, would convince enough voters in a referendum or quite enough MPs to work, though. And there will not be much time to wait if other Member States are serious about ratifying the Treaty by early in 2009; this scenario also means that the government may be reluctant to call an election in what would otherwise be favourable political circumstances.
The way forward The easiest path may be to combine c) and d), trying to get some concessions while waiting to see if someone else kills the Treaty or successfully demands to renegotiate it. Furthermore, the government also has other titbits that it can offer its rebels and trade unions, and other distractions which can be offered to the public. However, politics can develop a certain momentum and it is entirely possible that a hard choice between calling an election, holding a referendum or vetoing the Treaty will be unavoidable before too long.
All this could have been avoided if, as I argued in the spring, the EU leaders had agreed a rather more modest negotiating mandate that departed more significantly from the Constitutional Treaty and could not so easily be presented (partly truthfully) by critics as an attempt to sneak the Constitutional Treaty past the public again with purely cosmetic changes. But now the mandate has been agreed, it is hard to see how the EU could be brought around to that position without vetoes or referendum defeats for the Reform Treaty.
Let's hope that the third time around at a new Treaty, if the second attempt fails (as is starting to look likely) the maximalists will have the good grace to admit that their strategy has failed and indeed damaged the EU, and accept that the way forward is to proceed with more modest Treaty amendments that are closer to the grain of public opinion in the more Eurosceptic Member States.
Tuesday, 21 August 2007
The Chindamo case
The convicted killer of Philip Lawrence is obviously a horrible individual who is deservedly subject to a life sentence. EC legislation (if that is what the Asylum and Immigration Tribunal has applied in its recent judgment) would only permit him to be expelled back to Italy if he is a threat to national security. But this has nothing to do with his life sentence -- EC law has no impact on that. It is even possible that the UK system will be less lenient in permitting his future release than the Italian system. If the UK penal system never releases this murderer from his life sentence, that would be fine by me.
But is it wrong in principle that EC law does not allow his deportation? (Perhaps the tribunal was relying on the Human Rights Act; in that case the outcome is not so clearly required by Strasbourg case law). Obviously this is a difficult case, but the EC legislation strikes the correct balance. Once someone is on the territory of a Member State for over ten years, it makes sense that the concept of EU citizenship transfers responsibility for that person -- except in national security cases -- to the host State. This in no way restricts the prosecution and sentencing of individuals if they are found guilty of serious crimes.
One thing that is clear is that this is a matter of free movement law, not JHA law, since the person in question is an Italian man who is relying on an EC Directive (not adopted by the Commission, but by the Council and EP).
Open Europe is therefore wrong to make comparisons with JHA law:
http://www.openeurope.org.uk/media-centre/pressrelease.aspx?pressreleaseid=55
This case has nothing to do with asylum legislation, the rights of suspects, the European supervision order, or the prohibition of double jeopardy in the Charter. In any case, the UK could either veto or opt out of these legislative measures at present, or opt out of them under the Reform Treaty, and the UK's opt-out from the Charter quite clearly would mean that our law on double jeopardy would not be affected (in any case, there are exceptions to the double jeopardy principle, as set out in the relevant Protocol to the ECHR and which can be assumed to be incorporated into the Charter).
But is it wrong in principle that EC law does not allow his deportation? (Perhaps the tribunal was relying on the Human Rights Act; in that case the outcome is not so clearly required by Strasbourg case law). Obviously this is a difficult case, but the EC legislation strikes the correct balance. Once someone is on the territory of a Member State for over ten years, it makes sense that the concept of EU citizenship transfers responsibility for that person -- except in national security cases -- to the host State. This in no way restricts the prosecution and sentencing of individuals if they are found guilty of serious crimes.
One thing that is clear is that this is a matter of free movement law, not JHA law, since the person in question is an Italian man who is relying on an EC Directive (not adopted by the Commission, but by the Council and EP).
Open Europe is therefore wrong to make comparisons with JHA law:
http://www.openeurope.org.uk/media-centre/pressrelease.aspx?pressreleaseid=55
This case has nothing to do with asylum legislation, the rights of suspects, the European supervision order, or the prohibition of double jeopardy in the Charter. In any case, the UK could either veto or opt out of these legislative measures at present, or opt out of them under the Reform Treaty, and the UK's opt-out from the Charter quite clearly would mean that our law on double jeopardy would not be affected (in any case, there are exceptions to the double jeopardy principle, as set out in the relevant Protocol to the ECHR and which can be assumed to be incorporated into the Charter).
Tuesday, 14 August 2007
Open Europe's big Lie: the Reform Treaty and the UK opt-outs
Actually, another final post for today -- on a central issue -- the Reform Treaty and the UK opt-outs.
While it is true that the Reform Treaty is very similar to the Constitutional Treaty, this is less true for the UK than for other Member States -- due to the opt-outs regarding policing and criminal law and the EU Charter of Rights.
Eurosceptics are quite right to point to the government's dishonesty in failing to admit to the degree of similarity between the Constitutional Treaty and the Reform Treaty -- but they are themselves dishonest in understating or ignoring the extent of the changes between the two texts, particularly the importance of those two UK opt-outs.
Here is the key claim from Open Europe in a recent bulletin:
http://www.openeurope.org.uk/media-centre/bulletin.aspx?bulletinid=61
(iii) The UK’s “safeguards” and opt outs are not new – and won’t work
The Government, caught off balance by the many “unhelpful” comments from the other member states, has now started to fall back on the line that even if other EU governments view the new “treaty” as identical to the Constitution, the UK remains a special case on account of a tranche of opt-outs, opt-ins, emergency brakes and other “safeguards”.
But these safeguards are not new, and were in the original version of the Constitution - on which the Government promised a referendum. For example:
- The “emergency brake” on some aspects of social security is not new
- The “opt in” arrangement in Criminal justice and Policing is not new
- Most of the so-called “safeguards” on the Charter of Fundamental rights are not new, although the text adds some words specific to the UK.
Whether these particular safeguards (and others, which are not specific to the UK) will 'work' is a matter of opinion (although no-one should claim that they will, or won't, work without evidence). Let's leave that argument for another day (except for a specific point they make about criminal law and EC law -- see below).
Whether the safeguards are 'new' is, however, a matter of fact. It is correct to say that the 'emergency brake' on social security for migrant workers and self-employed workers is not 'new', as it appeared in the Constitutional Treaty -- although Open Europe fails to mention that the Reform Treaty clarifies this 'emergency brake' a little.
As for the other two opt-outs (criminal law and policing, and the Charter):
THEY ARE NEW. OPEN EUROPE IS LYING.
The Constitutional Treaty simply did not provide for the UK to have an opt-out as regards criminal law and policing. Article 1 of Protocol 19 to that Treaty provided as follows:
Subject to Article 3, the United Kingdom and Ireland shall not take part in the adoption by the Council of proposed measures pursuant to Section 2 or Section 3 of Chapter IV of Title III of Part III of the Constitution or to Article III-260 thereof, insofar as that Article relates to the areas covered by those Sections, to Article III-263 or to Article III-275(2)(a) of the Constitution.
What does this gobbledygook mean? Section 2 of Chapter IV of Title III of Part III concerned border checks, asylum and immigration. Section 3 of the same Chapter concerned civil law. Article III-260 concerns evaluation of JHA policies. Article III-263 concerns administrative cooperation. Article III-275(2)(a) concerns 'the collection, storage, processing, analysis and exchange of relevant information' by police forces. Article 3 of the Protocol permits the UK to opt in to measures in these areas, on a case-by-case basis. (Ireland is also covered by this Protocol in the same way).
This leaves sections 4 (criminal law: Articles III-270 to III-274) and 5 (policing: the rest of Article III-275 plus Articles III-276 and III-277) of that chapter. THE PROTOCOL DOES NOT GIVE THE UK AN OPT-OUT FROM THOSE PROVISIONS.
Read it yourself if you don't believe me:
http://europa.eu.int/eur-lex/lex/en/treaties/dat/12004V/htm/C2004310EN.01035301.htm
Compare this with the Reform Treaty. The mandate to negotiate the Reform Treaty states clearly that, in Section III: 'The following modifications will be introduced compared to the results of the 2004 IGC' [meaning the Constitutional Treaty]:
point 12: 'Moreover, the scope of the Protocol on the position of the United Kingdom and Ireland (1997) will be extended so as to include, in relation to the UK, and on the same terms, the Chapters on judicial cooperation in criminal matters and on police cooperation. '
This refers to the current Protocol giving the UK an opt-out from immigration, asylum and civil law, which states in Article 1:
Subject to Article 3, the United Kingdom and Ireland shall not take part in the adoption by the Council of proposed measures pursuant to Title IV of the Treaty establishing the European Community.
Neither this Protocol, nor any other current measure, gives the UK an opt-out from measures concerning policing and criminal law (the current Title VI TEU). That is why the Reform Treaty mandate refers to 'extend[ing]' this Protocol to cover policing and criminal law. So an opt-out for the UK and Ireland from these areas is clearly new, as compared to the current Treaties and as compared to the Constitutional Treaty.
This is not a statement of opinion, but a statement of fact. Open Europe might as well claim that the House of Lords is directly elected. And there is no reasonable excuse for them misunderstanding the Reform Treaty mandate -- these people are obsessives who read every word on the subject (not like me, not at all!) and the wording of the mandate on this point is not so difficult to understand, and certainly not for specialists, as they purport to be. It is their choice to pontificate on the subject on their website -- if they can't understand the text, they should keep quiet or admit that they are confused.
The Reform Treaty mandate is now implemented in the draft Reform Treaty, in pages 54-56 of the text which deals with new or amended Protocols.
http://www.consilium.eu.int/uedocs/cmsUpload/cg00002.en07.pdf
The revisions simply leave intact the current opt-out from Title IV of Part Three of the TEC for the UK and Ireland. But crucially, they do not limit the opt-out to sections 2 and 3 of Title IV (as did the Constitutional Treaty -- leaving aside the different numbering of the Treaty Titles, etc.). So the opt-out applies to sections 4 and 5, as well -- ie criminal law and policing.
As for Charter, the Reform Treaty mandate includes the text of the following Protocol, which is NOT found attached to the Constitutional Treaty:
Article 1
1. The Charter does not extend the ability of the Court of Justice, or any court or tribunal of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
2. In particular, and for the avoidance of doubt, nothing in [Title IV] of the Charter creates justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law.
Article 2
To the extent that a provision of the Charter refers to national laws and practices, it shall only apply in the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of the United Kingdom."
The Open Europe bulletin goes on to argue that this Protocol (notice they don't quote it) will not be effective at achieving the UK's objectives. But that is a different question from whether it is new as compared to the Constitutional Treaty, ie: 'these safeguards are not new, and were in the original version of the Constitution' (with a very limited later qualification).
And notice that there is only one argument in their bulletin to back up the claim that the opt-out from policing and criminal law won't work:
Indeed, in some ways the force of these safeguards has deteriorated since the original agreement in 2004. The much-vaunted opt-in on justice and policing can now be circumvented by the Commission as a result of a controversial 2005 European Court of Justice ruling which means the EU is able to propose criminal sanctions in all areas of ‘Community competence’. At present, this competence is limited to ‘environmental crimes’. But the Constitution changes this through a huge extension of Community competence, meaning the UK would be unable not to ‘opt-in’, and therefore would have to participate in any criminal justice measure that the Commission feels is necessary to “ensure the full effectiveness of a Community policy”.
Richard Plender QC, who represented the UK in the case in question, told Open Europe, “There is no opt-in or opt-out under this judgment”.
Well, let's unpack this. The current competence to adopt EC measures concerning criminal law is probably not limited to environmental crimes; the Commission has argued for a wider scope and an Advocate-General agrees in a pending case (C-440/05 Commission v Council). If this is correct, the Constitutional/Reform Treaty clause on this issue (Article 69f(2), to be inserted into the TEC/TFU) would confirm the status quo on this point, not alter it.
The adoption of legislation in this area, in the draft Treaty, is not down to the Commission's judgment as to whether the measure is 'essential to ensure the effective implementation of a Union' (moreover this must be 'in an area which has been subject to harmonisation measures'), but whether the Council and EP agree with that view (the same could be said of the present position).
There is no opt-out from the 2005 judgment, but what about from the relevant provision of the Reform Treaty? The issue is now dealt with under a specific clause, as I said already. I admit it is not clear from the text of the draft Reform Treaty whether the UK could opt out from such measures (because they concern criminal law) or not (because they concern another EU policy). Of course the UK could certainly opt out if the measure concerns an area of policy subject to a different UK opt out -- such as immigration law or monetary union. The UK should press to get this point clarified during the negotiations on the Reform Treaty - it is not clearly covered by the Reform Treaty mandate.
In any case, the 'emergency brake' certainly applies to this area (see Article 69f(3)) -- although of course Open Europe think that these brakes are meaningless. They have a good point when they argue that the 'emergency brake' must be different from a veto, otherwise there is no point in making the change -- but equally the brake must be different from QMV, otherwise there would be no point making that distinction either. So, assuming that the Court confirms the EC's competence to adopt criminal law to enforce any area of EU policy, then the UK would be in a stronger position under the Reform Treaty, even if it only gets an gets an 'emergency brake' out of it. If it gets an opt-out out of it, it will be much better off.
I had expected that Eurosceptics would argue that we still need to have a referendum despite the opt-outs that the government secured, and the other changes which the Reform Treaty makes to the Constitutional Treaty. I also expected them to argue that the opt-outs would be ineffective. But to claim that a significant new opt-out secured by the government is not new at all (and to suggest that another significant new opt-out is not really new) is just an inexcusable lie for a specialist organisation to make -- and they know full well that press stories will repeat it, using them as a source.
While it is true that the Reform Treaty is very similar to the Constitutional Treaty, this is less true for the UK than for other Member States -- due to the opt-outs regarding policing and criminal law and the EU Charter of Rights.
Eurosceptics are quite right to point to the government's dishonesty in failing to admit to the degree of similarity between the Constitutional Treaty and the Reform Treaty -- but they are themselves dishonest in understating or ignoring the extent of the changes between the two texts, particularly the importance of those two UK opt-outs.
Here is the key claim from Open Europe in a recent bulletin:
http://www.openeurope.org.uk/media-centre/bulletin.aspx?bulletinid=61
(iii) The UK’s “safeguards” and opt outs are not new – and won’t work
The Government, caught off balance by the many “unhelpful” comments from the other member states, has now started to fall back on the line that even if other EU governments view the new “treaty” as identical to the Constitution, the UK remains a special case on account of a tranche of opt-outs, opt-ins, emergency brakes and other “safeguards”.
But these safeguards are not new, and were in the original version of the Constitution - on which the Government promised a referendum. For example:
- The “emergency brake” on some aspects of social security is not new
- The “opt in” arrangement in Criminal justice and Policing is not new
- Most of the so-called “safeguards” on the Charter of Fundamental rights are not new, although the text adds some words specific to the UK.
Whether these particular safeguards (and others, which are not specific to the UK) will 'work' is a matter of opinion (although no-one should claim that they will, or won't, work without evidence). Let's leave that argument for another day (except for a specific point they make about criminal law and EC law -- see below).
Whether the safeguards are 'new' is, however, a matter of fact. It is correct to say that the 'emergency brake' on social security for migrant workers and self-employed workers is not 'new', as it appeared in the Constitutional Treaty -- although Open Europe fails to mention that the Reform Treaty clarifies this 'emergency brake' a little.
As for the other two opt-outs (criminal law and policing, and the Charter):
THEY ARE NEW. OPEN EUROPE IS LYING.
The Constitutional Treaty simply did not provide for the UK to have an opt-out as regards criminal law and policing. Article 1 of Protocol 19 to that Treaty provided as follows:
Subject to Article 3, the United Kingdom and Ireland shall not take part in the adoption by the Council of proposed measures pursuant to Section 2 or Section 3 of Chapter IV of Title III of Part III of the Constitution or to Article III-260 thereof, insofar as that Article relates to the areas covered by those Sections, to Article III-263 or to Article III-275(2)(a) of the Constitution.
What does this gobbledygook mean? Section 2 of Chapter IV of Title III of Part III concerned border checks, asylum and immigration. Section 3 of the same Chapter concerned civil law. Article III-260 concerns evaluation of JHA policies. Article III-263 concerns administrative cooperation. Article III-275(2)(a) concerns 'the collection, storage, processing, analysis and exchange of relevant information' by police forces. Article 3 of the Protocol permits the UK to opt in to measures in these areas, on a case-by-case basis. (Ireland is also covered by this Protocol in the same way).
This leaves sections 4 (criminal law: Articles III-270 to III-274) and 5 (policing: the rest of Article III-275 plus Articles III-276 and III-277) of that chapter. THE PROTOCOL DOES NOT GIVE THE UK AN OPT-OUT FROM THOSE PROVISIONS.
Read it yourself if you don't believe me:
http://europa.eu.int/eur-lex/lex/en/treaties/dat/12004V/htm/C2004310EN.01035301.htm
Compare this with the Reform Treaty. The mandate to negotiate the Reform Treaty states clearly that, in Section III: 'The following modifications will be introduced compared to the results of the 2004 IGC' [meaning the Constitutional Treaty]:
point 12: 'Moreover, the scope of the Protocol on the position of the United Kingdom and Ireland (1997) will be extended so as to include, in relation to the UK, and on the same terms, the Chapters on judicial cooperation in criminal matters and on police cooperation. '
This refers to the current Protocol giving the UK an opt-out from immigration, asylum and civil law, which states in Article 1:
Subject to Article 3, the United Kingdom and Ireland shall not take part in the adoption by the Council of proposed measures pursuant to Title IV of the Treaty establishing the European Community.
Neither this Protocol, nor any other current measure, gives the UK an opt-out from measures concerning policing and criminal law (the current Title VI TEU). That is why the Reform Treaty mandate refers to 'extend[ing]' this Protocol to cover policing and criminal law. So an opt-out for the UK and Ireland from these areas is clearly new, as compared to the current Treaties and as compared to the Constitutional Treaty.
This is not a statement of opinion, but a statement of fact. Open Europe might as well claim that the House of Lords is directly elected. And there is no reasonable excuse for them misunderstanding the Reform Treaty mandate -- these people are obsessives who read every word on the subject (not like me, not at all!) and the wording of the mandate on this point is not so difficult to understand, and certainly not for specialists, as they purport to be. It is their choice to pontificate on the subject on their website -- if they can't understand the text, they should keep quiet or admit that they are confused.
The Reform Treaty mandate is now implemented in the draft Reform Treaty, in pages 54-56 of the text which deals with new or amended Protocols.
http://www.consilium.eu.int/uedocs/cmsUpload/cg00002.en07.pdf
The revisions simply leave intact the current opt-out from Title IV of Part Three of the TEC for the UK and Ireland. But crucially, they do not limit the opt-out to sections 2 and 3 of Title IV (as did the Constitutional Treaty -- leaving aside the different numbering of the Treaty Titles, etc.). So the opt-out applies to sections 4 and 5, as well -- ie criminal law and policing.
As for Charter, the Reform Treaty mandate includes the text of the following Protocol, which is NOT found attached to the Constitutional Treaty:
Article 1
1. The Charter does not extend the ability of the Court of Justice, or any court or tribunal of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
2. In particular, and for the avoidance of doubt, nothing in [Title IV] of the Charter creates justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law.
Article 2
To the extent that a provision of the Charter refers to national laws and practices, it shall only apply in the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of the United Kingdom."
The Open Europe bulletin goes on to argue that this Protocol (notice they don't quote it) will not be effective at achieving the UK's objectives. But that is a different question from whether it is new as compared to the Constitutional Treaty, ie: 'these safeguards are not new, and were in the original version of the Constitution' (with a very limited later qualification).
And notice that there is only one argument in their bulletin to back up the claim that the opt-out from policing and criminal law won't work:
Indeed, in some ways the force of these safeguards has deteriorated since the original agreement in 2004. The much-vaunted opt-in on justice and policing can now be circumvented by the Commission as a result of a controversial 2005 European Court of Justice ruling which means the EU is able to propose criminal sanctions in all areas of ‘Community competence’. At present, this competence is limited to ‘environmental crimes’. But the Constitution changes this through a huge extension of Community competence, meaning the UK would be unable not to ‘opt-in’, and therefore would have to participate in any criminal justice measure that the Commission feels is necessary to “ensure the full effectiveness of a Community policy”.
Richard Plender QC, who represented the UK in the case in question, told Open Europe, “There is no opt-in or opt-out under this judgment”.
Well, let's unpack this. The current competence to adopt EC measures concerning criminal law is probably not limited to environmental crimes; the Commission has argued for a wider scope and an Advocate-General agrees in a pending case (C-440/05 Commission v Council). If this is correct, the Constitutional/Reform Treaty clause on this issue (Article 69f(2), to be inserted into the TEC/TFU) would confirm the status quo on this point, not alter it.
The adoption of legislation in this area, in the draft Treaty, is not down to the Commission's judgment as to whether the measure is 'essential to ensure the effective implementation of a Union' (moreover this must be 'in an area which has been subject to harmonisation measures'), but whether the Council and EP agree with that view (the same could be said of the present position).
There is no opt-out from the 2005 judgment, but what about from the relevant provision of the Reform Treaty? The issue is now dealt with under a specific clause, as I said already. I admit it is not clear from the text of the draft Reform Treaty whether the UK could opt out from such measures (because they concern criminal law) or not (because they concern another EU policy). Of course the UK could certainly opt out if the measure concerns an area of policy subject to a different UK opt out -- such as immigration law or monetary union. The UK should press to get this point clarified during the negotiations on the Reform Treaty - it is not clearly covered by the Reform Treaty mandate.
In any case, the 'emergency brake' certainly applies to this area (see Article 69f(3)) -- although of course Open Europe think that these brakes are meaningless. They have a good point when they argue that the 'emergency brake' must be different from a veto, otherwise there is no point in making the change -- but equally the brake must be different from QMV, otherwise there would be no point making that distinction either. So, assuming that the Court confirms the EC's competence to adopt criminal law to enforce any area of EU policy, then the UK would be in a stronger position under the Reform Treaty, even if it only gets an gets an 'emergency brake' out of it. If it gets an opt-out out of it, it will be much better off.
I had expected that Eurosceptics would argue that we still need to have a referendum despite the opt-outs that the government secured, and the other changes which the Reform Treaty makes to the Constitutional Treaty. I also expected them to argue that the opt-outs would be ineffective. But to claim that a significant new opt-out secured by the government is not new at all (and to suggest that another significant new opt-out is not really new) is just an inexcusable lie for a specialist organisation to make -- and they know full well that press stories will repeat it, using them as a source.
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