The Reform Treaty, the UK and the Referendum Issue

I've been following with interest some of the press debate about the growing controversy in the UK about whether there should be a referendum as part of the ratification process for the anticipated Reform Treaty. There is almost no nuanced discussion of the Treaty (well draft Treaty) itself, but rather the usual rantings of the antis and the pros in the different camps. In fact, because the UK's approach to the Reform Treaty negotiations has been such as effectively to create a separate treaty for the UK (see the comments by Jim Murphy Europe Minister), that the Treaty has - for very different reasons - attracted almost as much opprobrium on the part of the federalists as it has on the part of the the euro-sceptics. Moreover, the UK Government has also managed to mobilise some sections of the union camp in favour of a referendum, because of its mealy-mouthed approach to the issue of the scope and effects of the Charter of Fundamental Rights. Perhaps it's a vote winner with business in the UK; it certainly seems to have raised the hackles of some of the unions.


It is undoubtedly the case that the format chosen for the Reform Treaty, which will be a treaty amending and - in the case of the EC Treaty - renaming the existing treaties, which produces a result which is remarkably like the Four-Part-Constitutional-Treaty, except this will be Two Treaties and a bunch of Protocols (plus a whole raft of further protocols and declarations which would have been appended to the Constitutional Treaty anyway) is a problem. The big difference, as everyone points out, is that the Reform Treaty is shorn of the constitutional symbols so beloved of Giscard d'Estaing, which gave the Constitutional Treaty some of the veneer of a Big C Constitution, even if it had little of the content one might anticipate for a measure which would change the constitutional nature of the current EU, which is a hybrid mixture of intergovernmentalism and supranationalism. But the problem of the format is that it appears shifty and an attempt to do something by the backdoor, as Michael Bruter comments. Voters can react negatively to that sort of approach on the part of politicians, because they assume that they (the politicians) have something to hide.


I say **almost** no nuanced comment, but I have found a few things which are definitely worth reading and worth linking to; papers by George Schopflin in OpenDemocracy, an editorial in the Financial Times, penned - one suspects - by the peerless Peter Norman, a thorough fisking of what appear to be the arguments put forward by pro-referendum Labour MPs by EULawBlogger; an honest attempt at a Q & A/FAQ by the BBC. And now today a lengthy editorial in the Observer which has attracted a reasonably good set of comments. But there has been little else.


What interests me most is whether there is any sort of intellectually reputable argument in favour of a referendum on the Reform Treaty, based on an underlying claim for democratic legitimation, as seems to be the argument underpinning the regular references to the Reform Treaty (but sadly, no accompanying analysis) from the good folks at Our Kingdom. Unaccountably, however, they leaven their posts with regular references to leaders and articles in the Daily Telegraphy, a newspaper which is certainly **not** well disposed to the EU generally, and for whom the Reform Treaty represents, as it does for Cameron, another stick to beat the Labour Party and Gordon Brown over the head with. A progressive democrat would need to find some references points for his or her argument other than the Daily Telegraph for me to begin to be convinced that there exists some sort of foundational democratic argument for a referendum on a Treaty which will not affect the way we are governed anywhere near as much as the Single European Act and the Treaty of Maastricht.

Scotland and the euro

No time to post today - frantic at work. But my esteemed friend RoadRunnerReturns, a fellow blogger on "The Original BondBloke" has exercised **his** substantial expertise in matters of EU politics and there I can bring you, courtesy of him, important insights as to what Scotland's status would be vis-a-vis the euro, in the event of independence. Read more here.

Learco Chindamo - uses and abuses of EU law

I've already posted about the Learco Chindamo case on my other "regular" blog, but I am grateful for EULawBlog (I think that's all one word) for drawing my attention to a risibly confused press release on the topic by Open Europe, which really does show up this organisation up to be incapable of any sensible comment on the topic of the effects of EU laws and legislation. And to think they hold themselves out as somehow experts on the matter... Openness requires accuracy to be effective, I'm afraid.

Learco Chindamo (an Italian national and therefore EU citizen) is the man who murdered the Head Teacher Philip Lawrence, and who has been serving a life sentence (which was originally going to be indefinite, I think, until the ECtHR stepped in relation to the cases of the killers of Jamie Bulger). Anyway, his tariff is set at a minimum of 12 years, which means he can be considered for release in 2008 - provided he is not a danger to the public. If he is not a danger to the public, then there is no way that **EU single market law** (note, Open Europe, single market not justice and home affairs) law would allow him to be deported, given his circumstances. Came to UK when only 6; only effective family and life in the UK; probably doesn't speak Italian; etc. etc. That much is abundantly clear from the citizens' rights directive, which I excerpted on the other blog.

Quite how Open Europe think that this has anything to do with harmonisation in the field of justice and home affairs (which, I would agree with them, is politically tendentious) is beyond me. Open Europe claims to embrace economic liberalisation. That means the single market. The single market for persons, as opposed to goods, services and capital, has always, inevitably, meant more than just treating people as economic commodities. That was recognised in the foundational free movement of workers legislation in the 1960s, in relation to matters such as coordination of social security rights, and - yes - the deportation of those deemed undesirable for whatever reason. It is interesting that the very first reference to the Court of Justice from a UK court was in relation to a deportation question - the case of Van Duyn. The precise point there was about the consideration of cases involving what we now call "EU citizens", i.e. the nationals of a Member State, on an individual basis, judging what threat they might individually pose to public security. With the citizens' rights directive, the law has moved on somewhat, but the point remains essentially the same. At least the courts appear to have understood the relevance and correct application of EU law (whatever you think about its political content), even if the politicians and the executive, to judge by the Home Office reaction, and a so-called "leading" thinktank have not.

The Menber States: responsible "masters" of the treaty?

This is what happens if you leave the Member States in charge of the Treaty. Or at least, that would be what a so-called "friends of the Treaty" might say. The apparent removal of a reference to "free and undistorted competition" in the list of the Union's objectives. We'll have to see what this French-inspired move means in terms of concrete textual change in due course, and it will be a very long time before we know what its legal effects, if any, might be. But the incident shows the danger of making piecemeal changes to the text of the original treaties (because after all we are now talking about a reforming and amending treaty, not a replacement treaty) in order to appease national sensibilities. With 27 Member States, there could be no end to it. Why not remove Articles 81 and 82 at the same time, and be done with it...if it keeps the French on board...?

A very good resource

Somebody, cannot remember who, drew my attention recently to the Economist's excellent euro-blog, which has had some excellent snippets recently. That in turn has drawn my attention to the fact that the Economist has put online a series of its articles from key moments in the history of European integration, dating right back to the 1950s. Now that really is helpful.

The Declaration of Berlin

The absence of posts here should not be taken as a waning of interest in things European, or indeed in blogging. There has been light activity over at the other place, recently, and a spate of travelling in the next few weeks may increase the posting quotient on both blogs. Funnily enough I find it easier to post when I am away from home (most people seem to say the opposite and issue apologies for light posting on their blogs because they are away). It is probably a reflection on the fact that most of my travelling is for work, and much of it is done alone, without the other half. Obviously it is dependent upon finding internet connections for the laptop (am currently in Goodenough Club in London - the most civilised place to stay in London - with such a connection, for a conference tomorrow and Saturday), but this is increasingly easy these days in hotels (although it is sometimes quite expensive).

Anyway, to return to things European (this isn't supposed to be a personal blog...), I was interested to read Nosemonkey's take today on the attempts by the Czech Republic to undermine the mood music which Chancellor Merkel would like to surround the celebrations of the 50th Anniversary of the Treaty of Rome this coming weekend in Berlin. Who knows what politics the Czechs are playing. But it is doubtless something to do with manoeuvring for position with regard to the more important question of negotiating amendments to the current treaties to incorporate some of the institutional reforms included in the ill-fated Constitutional Treaty. It is also probably something to do with the complex internal politics of Central Europe, and a desire to make the German Government seem authoritarian in its secretive approach. After all, given that the Poles have apparently agreed to sign up to the Declaration, the question arises as to what precisely the Czechs are trying to achieve. Anyway, I feel I should correct a slight misnomer in the reporting of the approach which Merkel appears to be taking. It was always clear that unless agreement could be reached on the part of all 27 Member States, a distinctly suboptimal position, but a position none the less that could be taken, was that any Declaration could be signed by the heads of the three institutions - the Commission, the European Parliament and the Council of Ministers/European Council. This was the approach taken to the promulgation of the Charter of Fundamental Rights in 2000, after it had been drafted by a Convention in which some of the most influential members were the representatives of the national governments. In fact, the Charter Convention was the first time that Peter Goldsmith, as UK Government representative, crossed my radar screen. And jolly influential he was too, as this pdf shows. There is nothing institutionally wrong with the three presidents of the institutions signing a declaration, since it is clear that there is a distinction between the Council President signing qua President, and the Member States formally committing themselves severally to a document (such as a Treaty). However, it strikes me that the greater problem with this suboptimal solution to the problem of trying to get something declaratory which summarises the past and promises more honey for tea in the future formally approved is not that it looks like Germany ordering the others around, but rather that it will be seen as unacceptably partisan, because Merkel, Poettering and Barroso all belong to the Christian Democrat European People's Party. Now that really is a problem.

Jean Marie Le Pen welcomes enlargement

My goodness me. Wikipedians move fast. There is already a Wikipedia entry for Identity, Tradition and Sovereignty, the new far-right grouping in the European Parliament, whose construction was enabled by the accession of Romania and Bulgaria. And they don't appear to have even sorted out their own website yet. It was the Romanians, really, who made the difference, bringing numbers to the party (five members). They belong to the odious and anti-semitic Greater Romania Party (the name says it all). With these five, and one from Bulgaria (described by EU Observer as someone 'who caused a ruckus in the parliament last year when he circulated a derogatory email about Roma people') the new group have just made it over the threshold of 20 MEPs, with representatives from seven states. The main beneficiaries of the change are the seven French members of the Front National who can avoid for the first time since 1994 sitting in the wilderness of the non-aligned benches where none of the support which flows from being a European Parliament group flows to them. Hence my headline - Le Pen, the arch nationalist, has all the more reason to welcome the accession of these two new members, as the French newspaper Liberation points out. What an irony. Apart from. The other four states contributing members of this group are Austria (kicked out of the Freedom Party for being too extreme), Italy (including the granddaughter of Mussolini), the Belgian Flemist nationalists Vlaams Belang and ... wait for it ... a former member of UKIP, sitting in the European Parliament because he was elected under the UKIP banner, Ashley Mole. It is fair to say, of course, that he is no longer a member of UKIP, but really....that's not the point. It was UKIP, under the UK list system, which got him elected.

It seems reasonable to suggest that the new party group will not necessarily be a happy place to be. There are intense contradictions inherent in cooperating in a cross-national group if your political position is in essence nationalist and sovereigntist. Although the rewards of being out of the wilderness of non-alignment are great, it is not inconceivable that the party group will collapse under the weight of its contradictions. Alternatively, it is possible that it may grow and attract further members, as a process of continuing realignment of the rightist groups in the European Parliament continues. The League of Polish Families, currently sitting in the Independence Democracy group may be tempted the politics of this new grouping of populist far-rightist politicians. After that, next stop - a European Political Party of the far right operating outside the European Parliament and enjoying funding under the EU rules which support such pan-European groupings. Now such a sharing of sovereignty really would be a challenge to a group of sovereigntist national parties.

The fate of the EU's Constitutional Treaty

In lieu of a proper post, here is a link to two papers I have recently written on the fate of the Constitutional Treaty - one for a more legal audience, and another of a more generalist character. They are both PDF files. Rather heavy going, I'm afraid, but I'm stumped for a more lightweight analysis at the present.