Open Europe's Bulletin on the New Treaty

Let's have a look at the Open Europe Bulletin on the plans for a quasi-Constitutional Treaty, online at:

http://www.openeurope.org.uk/media-centre/bulletin.aspx?bulletinid=58

First (excerpts from their Bulletin in italics):

The reality is that the UK Government would never sign up to a deal involving either the Charter of Fundamental Rights or giving the EU a legal personality – that has been clear for some time now. Both would mean a huge transfer of power and would make the EU look more like a country than an international agreement. Even a messy fudge in which there were “safeguards” to stop the Charter from affecting national law would be a disaster for the Government – and they will never sign up to a deal which included it.

I have my doubts that the government will win its argument on these points, as I pointed out in my last post. But in fact they are not really trying to -- the 'red lines' as set out by Blair on Monday do not specifically state that the Charter should not be binding at all, or that the EU should not get a legal personality. It appears to me that Open Europe is distorting the government's actual position so that if the government 'fails to get its [supposed] red lines' then it can be criticised for 'selling out'. They accuse the government of misleading the public -- with some justice -- but they are actively engaged in misleading the public themselves.

On the merits of the arguments here, as I have pointed out before, the Charter (according to the Court of Justice) has the same content as the existing 'general principles of Community law', and Article 51 of the Charter expressly limits its application to acts of EU institutions and Member States only when they implement EU law. The same Article goes on to specify that it does not expand EU competence. Has any Eurosceptic ever acquainted him/herself with Article 51? Or the jurisprudence of the Court of Justice, which has refused to apply the general principles to purely national issues? (see Case 12/86 Demirel).

Also, the European Community already has express legal personality (signing hundreds of treaties since the 1960s), and the European Union has implied legal personality (signing a couple of dozen treaties since 2001). International organisations do have the capacity to sign treaties, without therefore being regarded as states -- that is the reason why there is a Vienna Convention on the law of treaties signed by international organisations, dating back to 1986.

So let's be clear, neither a binding Charter nor an express legal personality for the EU would transfer any powers at all from Member States to the EU.

This is despite the fact that the UK was defeated during the set-up of both the EU President and the EU Foreign Minister.

Open Europe does not point to any evidence that the UK was defeated as regards the EU President during the prior negotiations. That is because the creation of the President was a prime objective of the UK during the 'Convention' which originally drafted the Constitutional Treaty. The creation of the post was therefore a victory for the UK, and for the other big Member States which supported the idea. The UK supported the idea because the EU summits (the European Council) are perceived to be the primary avenue for large Member States to influence EU affairs, and the creation of a 'permanent' President of this body (NOT a President of the EU) would therefore strengthen large Member States' effectiveness. The point was discussed in detail during the press coverage of the Convention.

If an EU Foreign Minister appears in the same form as the original Constitutional Treaty national vetoes in several areas of foreign policy would be abolished. The original version of the Constitution proposed that votes on policies or actions proposed by the EU Foreign Minister would not be subject to national vetoes. This would represent a substantial shift in power from member states to the EU.

The final text of the Constitutional Treaty provides that the veto would be abolished if the Foreign Minister makes a proposal following a request by the European Council (the EU leaders). In the absence of a specified voting rule, the European Council would act by consensus when making that request.

But the most important point is that there is an 'emergency brake' in the Constitutional Treaty as regards any form of majority voting over foreign policy, stopping the voting dead unless the issue is referred to EU leaders, and unless EU leaders decide by unanimity how to resolve the deadlock (discussed in detail in my last post). As I pointed out in my last post, Eurosceptics are loath to mention the existence of this clause. And here is Open Europe confirming this point already.

The EU Foreign Minister would also have an automatic right to speak on the UK’s behalf in key international meetings like the UN security council. The original version of the Constitution said that “When the Union has defined a position on a subject which is on the United Nations Security Council’s agenda, those Member States which sit on the Security Council shall request that the Union Minister for Foreign Affairs be asked to present the Union's position.” The UK asked for this to be removed, but later gave in, and allowed it to be included.

The Foreign Minister would be presenting the EU's position, as the text makes clear. So he/she would only exercise this power when the EU has agreed a common position -- and the EU could only define that position by means of unanimous voting of foreign ministers or voting with the 'emergency brake'. I agree that it would be better if this clause were removed though -- see the last post.

But let's see what changes the UK can get to the foreign policy provisions this week, before jumping to conclusions. The UK is not diverting attention from a 'cave-in' on this issue -- according to today's Financial Times, it has disturbed other Member States by raising the precise issue of the power of the Foreign Minister.

An EU President would fundamentally change the lawmaking process in Brussels. Instead of new laws being negotiated between the supranational Commission and a national head of Government (with a vested interest in protecting the rights of member states), negotiations would in future take place between one independent Brussels institution and another.

Absolute claptrap. Stop lying, please! Negotiations take place currently within the Council (of national ministers), and often also between the Council and the European Parliament (not between the Commission and 'a national head of government', whatever that means). The Commission and the European Council have a role as agenda-setters as regards policy development. The Constitutional Treaty would not alter this.

So why would negotiations in future take place between the Commission and the European Council (NOT the EU) President? How would the President be 'independent', when his only power is to chair meetings of EU leaders, in which he or she does not even have a single vote? (ditto the president of the Commission: Article I-25(4)). Why would the European Parliament support the Treaty so strongly if it was going to lose its lawmaking powers? How will the European Council take part in 'negotiations' in the 'lawmaking process' when the Treaty states that 'It shall not exercise legislative functions' (Article I-21(1))?

In fact it would mean a radical 30% cut in the UK’s power to block damaging EU laws. Even just looking at the proposals that are currently in the pipeline, we can see that less power would mean trouble for the UK - never mind anything unpleasant that might be further down the line. The UK and a few other liberal states are currently blocking the Temporary Agency Workers Directive, which would give temporary workers the same rights as permanent workers. The UK and other countries are blocking moves to restrict the UK’s individual opt-out from the 48 hour working week – which would cost £9bn per year according to the DTI.

As an academic study points out, the role of the UK as the swing vote would be increased (see my post yesterday). As I have already pointed out again, the temps directive has not been discussed for years, and the UK would easily maintain its blocking minority on the working time directive under the CT voting rules. And have any Eurosceptics noticed that Sarkozy has said that he wants workers to be able to work as many hours as they choose?

Because the negotiations are taking place completely behind closed doors it is difficult to know what else might appear. For example, there have been some suggestions that the European Court of Justice might gain jurisdiction over issues like justice and home affairs for the first time – a move resisted by successive UK governments since 1992. This could be even worse than giving up the veto over crime and justice. If criminal law was moved to qualified majority voting, the UK could at least try to persuade other member states to help it block things it was opposed to. But when the ECJ makes a ruling, there is simply no come-back at all.

Does this organisation have any integrity, or knowledge of EU law at all? I have already pointed out in my posts -- as anyone writing about EU law should know or bother to find out -- that the Court had a limited jurisdiction over these matters since 1993, which was expanded in 1999 with the Treaty of Amsterdam. The UK and all other MS have accepted the Court's jurisdiction (in a limited way) over the civil law and immigration and asylum law aspects, but not over criminal law and policing; about half of the Member States have accepted the Court's jurisdiction over the latter. The Constitutional Treaty would expand the Court's jurisdiction further (as distinct from giving it jurisdiction 'for the first time'!), but that is no secret. Presumably the quasi-Constitutional Treaty will do so again -- as no-one has suggested taking the Court's jurisdiction out of it. God forbid that the EU has a Court to observe the rule of law as regards issues like criminal law or asylum!

I ask again -- how can we have a referendum when campaigners and newspapers -- never mind politicians on both sides of the argument -- just cannot tell the truth?