A sense of sovereignty…

Ok, so there’s not going to be a referendum on the Lisbon Treaty in the UK.
The Czech President has signed, ratifying the Lisbon Treaty and bringing into force the treaty over which there have been so many statements, bits of information and misinformation and more proposterous headlines in our press than even I could have imagined.

I can’t parody them well enough after a long day at work, (but who needs parody when you’ve got “Signed. Sealed. Delivered. Up Yours” at the Sun and “Britain: the end” on the Express). You’ll just have to read Nosemonkey’s Tweets, now gathered together in one place to get a sense of what’s being said.
The Q&A on the Sun’s website informs readers that “the aim of the Treaty is to build a federal united states of Europe” – must be a different Treaty from the one I read then.  The Daily Telegraph talks about more British powers being “surrendered to Brussels” but doesn’t directly cite any and instead offers this:

Daniel Hannan, a Tory MEP and leading Euro-sceptic said the signing was a step towards a European super-state. “The boot continues to stamp on the human face,” he said.

The Daily Telegraph also says that “one of the most visible changes the treaty makes is the creation of a new permanent president for the EU, who will chair European summits and set the union’s agenda”. 
Again with the President of the EU thing! 
The EU is awash with Presidents: President of the European Commission (Jose Manuel Barroso), President of the European Parliament (Jerzy Buzek) and this role, President of the Council.  This is not a Napoleonic high ruler of all Europe role but, as the Telegraph itself sets out, a role for chairing summits and setting the agenda (i.e. the work programme).  It’s likely also to have some overlap with the “Foreign Minister” (actually the High Representative for Foreign and Security Policy) and therefore have a “world stage” role.  But we’re not about to be ruled from Brussels with the President’s face on our Euro banknotes…

Oh what’s the use?  When that’s the quality of the information being given out, how are we ever supposed to have an informed debate in the UK?

I used to teach constitutional politics to people who really ought to understand it, but often really didn’t. 
I found the most effective way to bring the key points home was to run a constitutional quiz, with an element of competition between “teams” within the group, and a ridiculous prize (a handful of boiled sweets or losing team to buy winning teams in the bar that night).  I’m particularly missing the chance to teach the big constitutional change that’s been promised today.

Not completion of reform of the House of Lords – it seems that, with talk of Kirsty Allsop and others becoming new peers if the Conservatives win the next election, the chance of signing up sympathetic names with a recognised expertise is too attractive to an incoming government for any swift promise of reform. 
Actually, the idea of short-term peers appointed for one parliamentary term for a specific task rather than for life, while a big change constitutionally, is potentially quite attractive as a way of getting some real expertise into parliament without requiring them to be elected to a constituency (a system by which if we get expertise its incidental to being a consituency representative rather than by design).

No, David Cameron’s speech on Europe today was actually very radical.
Not the defensiveness on dropping the pledge on a referendum on the Lisbon Treaty – it’s been obvious for a while that that was going to come because, as he said, holding a referendum on a(n amending) treaty that has already passed into European law is a pointless exercise and most governments don’t want to use up all of their international negotiating capital on a big dramatic but ultimately futile gesture. 
The interpretations of the UK constitutional settlement are new, and definitely interesting. 

There are indeed some changes coming in the Lisbon Treaty – Ralf Grahn’s Grahnlaw blog sets these out comprehensively  and Euractiv does the same for the layperson– but its the changes proposed in today’s speech that I want to look at from the constitutional side.
Cameron proposes three UK constitutional changes:
1) a referendum lock, to require referenda on any future Treaties, which all parties would pledge never to overturn;
2) a sovereignty Bill, on which more below; and
3) a block on the use of “ratchet clauses” (known as “passerelle” clauses elsewhere in Europe) that would allow extension of QMV to areas on which there are currently national vetoes, without the backing of a vote in the UK parliament. 

David Cameron says

“if we win the next election, we will amend the European Communities Act 1972 to prohibit, by law, the transfer of power to the EU without a referendum.  And that will cover not just any future treaties like Lisbon, but any future attempt to take Britain into the euro.  We will give the British people a referendum lock to which only they should hold the key – a commitment very similar to that in Ireland”.  
“It is not politicians’ power to give away – it belongs to the people.  So at the General Election, we will challenge the other political parties to accept the referendum lock and pledge never to reverse it”. 

Three ideas to think through here:
I’m dubious about the idea of a “pledge never to reverse it”.  I guess such a pledge could have no weight in law, because in the UK we have a principle that no parliament can bind another – this a key point of our parliamentary democracy.  In that case, the only weight of such a pledge would be in the infamous court of public opinion.
Secondly, up until now, we’ve also had another point of parliamentary democracy that we are a representative democracy – we elect representatives to take decisions on our behalf and hold them to account through elections.
And thirdly, a quick aside if I can: I’m not a constitutional lawyer, but I’d be interested in a view on this one… the thing about the European Communities Act is that it is effectively a piece of the UK’s constitution.  I mentioned that we have a tradition in UK politics that no parliament can bind any future parliament.  Just like any other piece of UK legislation, the ECA could be repealed at any time.  Until now, you can speculate that would’ve taken the UK out of the EU (although of course there would’ve been a whole load of further work) if a future government have , but now there’s a clear procedure for so doing, an “exit clause”.   Actually, I’ve just heard Chris Bryant, the Europe Minister, say that. So it must be right.
Ooh – one more, having just heard William Hague on BBC Newsnight – why wouldn’t a referendum lock be triggered by accession of a new Member State?  This was explicitly excluded in the interview just now, but given that accession of, say, a big new Member State like Turkey would change the relative power of the UK in the EU – so why would that not be automatically subject to the referendum trigger?

The idea of a Sovreignty Bill immediately gave me a sinking feeling when I heard the term – was this yet again a “EU law must not be superior to UK law” argument of the sort that the tabloid press raised when the Lisbon Treaty was drafted to put into the text of the Treaty something that’s been case law since before the UK joined the EEC (the German courts tried to argue that their Constitution came above everything else, but actually tried to use this principle to block the single market – ironically one of the elements of the EU that is most acceptable to the UK eurosceptics)?

Actually, what is described makes some sense:

Take the sovereignty of our laws.  Because we have no written constitution, unlike many other EU countries, we have no explicit legal guarantee that the last word on our laws stays in Britain.  There is therefore a danger that, over time, our courts might come to regard ultimate authority as resting with the EU.  So as well as making sure that further power cannot be handed to the EU without a referendum, we will also introduce a new law, in the form of a United Kingdom Sovereignty Bill, to make it clear that ultimate authority stays in this country, in our Parliament.  This is not about Westminster striking down individual items of EU legislation.  It is about an assurance that the final word on our laws is here in Britain.  It would simply put Britain on a par with Germany, where the German Constitutional Court has consistently upheld – including most recently on the Lisbon treaty – that ultimate authority lies with the bodies established by the German Constitution.

Of course, what with this, the incomplete Lords reform and the idea of a British Bill of Rights, it might be clearer and more effective to establish a written constitution for the UK.  This would of course be likely to require a higher threshold for change – and that would protect citizen’s rights (and stop Councils (ab)using counter terrorism legislation to justify putting spy cameras in people’s bins).
But it seems no politician is willing to spend the political capital that could be spent pushing forward their policy agenda on a full-on tidy up of the UK’s consititutional settlement.

What about the rachet clauses?  Are they really so scary?

Furthermore, we would change the law so that any use of a ratchet clause by a future government would require full approval by Parliament.

According to the easy guide to the Lisbon Treaty (ok, Wikipedia) the treaty also allows for the changing of voting procedures without amending the EU treaties. Under this clause the European Council can, after receiving the consent of the European Parliament, vote unanimously to:

  • allow the Council of Ministers to act on the basis of qualified majority in areas where they previously had to act on the basis of unanimity. (This is not available for decisions with defence or military implications.)
  • allow for legislation to be adopted on the basis of the ordinary legislative procedure where it previously was to be adopted on the basis of a special legislative procedure.
  • A decision of the European Council to use either of these provisions can only come into effect if, six months after all national parliaments had been given notice of the decision, none object to it.

So essentially promising a full vote of parliament on the rachet clause is effectively required by the Treaty of Lisbon itself!  So that’s not actually that radical then…

If you look at the development of the EU to date, you’ll notice that there’s been a speeding up in recent years.  There was no new Treaty between 1956 and 1987 although the original 6 member states were joined by 6 new countries in that time. 
The Single European Act, in 1987, is still the most radical change to the powers of the EEC/EC/ EU that has taken place – and Thatcher thought majority voting was a price worth paying for a completed single market. 
We’ve had a huge number of new Member States (6 to 9, to 10, to 12, to 15, to 25 and now 27) and there’s always been a sense that enlarging the EU in terms of the number of Member States should be accompanied by a “deepening” of the sort of decisions taken collectively.  But I don’t think that we’re there any more.  When Lisbon was being negotiated, if you read the press reports afterwards, there seemed to be a bit of a sense that the Treaty better be as good as it could because there’d probably never be a chance to develop another one. 
So I’m not clear how much use any of this is likely to be anyway?

Finally, there are also three policy areas named from which a future UK Conservative government would seek to extricate the UK:
1) social and employment policy;
2) the charter of fundamental rights, and
3) criminal justice.
I have to admit that at the moment I can’t really understand why these are so totemic.
For example, a range of questions inspired by the social and employment policy field:  I’m not clear what the damage that eminates from Europe as opposed to poor implementation and goldplating? The example cited is the NHS and the Working time Directive, but don’t tired doctors make mistakes? Why can’t the BMA find an alternative approach to training that doesn’t require such long hours that e.g. parents of small children would never be able to train? And would the extrication go wider than just the NHS or public sector?
And presumably the price for extricating the UK might take into account the fact that UK-based companies would then be able to compete against those based in other European Member States by requiring their workers to work long hours? 
Happy to try to understand more on this one if someone can explain this to me, please. 

On the Charter of Fundamental rights – forgive me, but don’t we already have most of these rights via the Human Rights Act? 
Or indeed a British Bill of Rights, were such a thing to be introduced and the HRA repealed?  
I’m not going to deconstruct the argument that appears to have been revived today on e.g. the imposition of collective argaining or the right to strike, but would suggest instead that you read this excellent summary and take into account the “national rules apply” sections of the Charter’s text.

I’m going to stop now – after all I no longer teach constitutional politics.
But, it looks like there are going to be interesting negotiations if and when there’s a change of government in the UK, especially if the story the Guardian is running right now gives a taste of the likely tone…

One thought on “A sense of sovereignty…

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