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.