Tag Archives: Constitutionalism

German Constitutional Court Lisbon Treaty ruling

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Another small hurdle for the much-beleaguered treaty to overcome:

the Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters (Gesetz über die Ausweitung und Stärkung der Rechte des Bundestages und des Bundesrates in Angelegenheiten der Europäischen Union) infringes Article 38.1 in conjunction with Article 23.1 of the Basic Law (Grundgesetz – GG) insofar as the Bundestag and the Bundesrat have not been accorded sufficient rights of participation in European lawmaking procedures and treaty amendment procedures. The Federal Republic of Germany’s instrument of ratification of the Treaty of Lisbon may not be deposited as long as the constitutionally required legal elaboration of the parliamentary rights of participation has not entered into force.

And so the ratification of the Lisbon Treaty is to be yet further delayed while Germany rejigs a few bits and pieces of its own constitution to accommodate it. Which, depending on how long Germany takes to sort this out, could mean that the treaty is delayed long enough for there to be a Conservative government in the UK before Lisbon has been fully ratified, which would mean a UK referendum, which would mean Lisbon’s rejection by Britain and yet another crisis for the EU. Fun fun fun.

There’s lots more in this genuinely fascinating ruling that is pretty much guaranteed to be seized upon by those of an anti-EU persuasion – even though the real issue here is as much Germany’s strict constitution as any problems with the expansion of EU powers. The ruling also helps clarify a number of issues, as well as point to more issues of the EU’s structure and identity that really need to be clarified by the EU itself.

First up, the EU’s crisis of identity and purpose – as I’ve noted many times, the EU itself doesn’t know what it is for, so little wonder it’s got a rather confused structure:

The structural problem of the European Union is at the centre of the review of constitutionality. The extent of the Union’s freedom of action has steadily and considerably increased, not least by the Treaty of Lisbon, so that meanwhile in some fields of policy, the European Union has a shape that corresponds to that of a federal state, i.e. is analogous to that of a state. In contrast, the internal decision-making and appointment procedures remain predominantly committed to the pattern of an international organisation, i.e. are analogous to international law; as before, the structure of the European Union essentially follows the principle of the equality of states.

Note, dear eurosceptic friends, that “analogous to a state” does not mean “is a state” – and note also that “a shape that corresponds to that of a federal state” does also not mean “is a state” (and also that federal states can take many forms – their defining characteristic being the importance placed on devolved, state/regional levels of governance over that of a central authority).

Indeed, this ruling seems to utterly preclude the creation of a European superstate – at least, not without a fundamental change to the German constitution, ratified by referendum (that’s how I read this, anyway):

As long as, consequently, no uniform European people, as the subject of legitimisation, can express its majority will in a politically effective manner that takes due account of equality in the context of the foundation of a European federal state, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority. In Germany, accession to a European federal state would require the creation of a new constitution, which would go along with the declared waiver of the sovereign statehood safeguarded by the Basic Law.

…The peoples of the Member States are the holders of the constituent power. The Basic Law does not permit the special bodies of the legislative, executive and judicial power to dispose of the essential elements of the constitution.

…The authorisation to transfer sovereign powers to the European Union pursuant to Article 23.1 GG is, however, granted under the condition that the sovereign statehood of a constitutional state is maintained on the basis of a responsible integration programme according to the principle of conferral and respecting the Member States’ constitutional identity, and that at the same time the Federal Republic of Germany does not lose its ability to politically and socially shape the living conditions on its own responsibility.

That, to me, pretty much categorically rules out any EU superstate – while allowing for further integration, up to an indeterminate level (yet to be defined, but before the stage at which Germany’s ability to “politically and socially shape the living conditions” of its people is lost) at which a popular vote and alteration of the German Constitution would become necessary. Later, the EU’s current nature is more clearly defined:

With the present status of integration, the European Union does, even upon the entry into force of the Treaty of Lisbon, not yet attain a shape that corresponds to the level of legitimisation of a democracy constituted as a state. It is not a federal state but remains an association of sovereign states to which the principle of conferral applies…

With the entry into force of the Treaty of Lisbon, the Federal Republic of Germany will remain a sovereign state. In particular, the substance of German state authority is protected.

There we have it – fairly categorical, that. And if anti-EU types are happy to use German politicians to claim that 84% of laws stem from the EU, I think it’s only fair for those of us of a less vehemently anti-EU persuasion be allowed to quote these German judges repeatedly when countering claims that the EU is becoming a superstate.

Moving on, the European Parliament also comes in for some stick, largely for still being ineffective, under-developed, and uninfluential – though this is seen as a good thing, as too powerful a European Parliament, runs the logic, could claim greater democratic legitimacy within the EU decision-making process than the governments of the member states working together behind the scenes via the Council and Commission, and thus reduce their freedom of action (the EU’s “democratic deficit”, in other words, is actually preserving the sovereignty of the member states…):

Neither as regards its composition nor its position in the European competence structure is the European Parliament sufficiently prepared to take representative and assignable majority decisions as uniform decisions on political direction. Measured against requirements placed on democracy in states, its election does not take due account of equality, and it is not competent to take authoritative decisions on political direction in the context of the supranational balancing of interest between the states. It therefore cannot support a parliamentary government and organise itself with regard to party politics in the system of government and opposition in such a way that a decision on political direction taken by the European electorate could have a politically decisive effect. Due to this structural democratic deficit, which cannot be resolved in a Staatenverbund, further steps of integration that go beyond the status quo may undermine neither the States’ political power of action nor the principle of conferral.

And, just to underline yet further how an EU superstate is not on the cards:

The European Union must comply with democratic principles as regards its nature and extent and also as regards its own organisational and procedural elaboration (Article 23.1, Article 20.1 and 20.2 in conjunction with Article 79.3 of the Basic Law). This means firstly that European integration may not result in the system of democratic rule in Germany being undermined. This does not mean that a number of sovereign powers which can be determined from the outset or specific types of sovereign powers must remain in the hands of the state. European unification on the basis of a union of sovereign states under the Treaties may, however, not be realised in such a way that the Member States do not retain sufficient room for the political formation of the economic, cultural and social circumstances of life. This applies in particular to areas which shape the citizens’ circumstances of life, in particular the private space of their own responsibility and of political and social security, which is protected by the fundamental rights, and to political decisions that particularly depend on previous understanding as regards culture, history and language and which unfold in discourses in the space of a political public that is organised by party politics and Parliament. To the extent
that in these areas, which are of particular importance for democracy, a transfer of sovereign powers is permitted at all, a narrow interpretation is required. This concerns in particular the administration of criminal law, the civil and the military monopoly on the use of force, fundamental fiscal decisions on revenue and expenditure, the shaping of the circumstances of life by social policy and important decisions on cultural issues such as the school and education system, the provisions governing the media, and dealing with religious communities.

Oh, and we’ve also got a categorical rejection of that myth that the Lisbon Treaty has the potential to become a self-amending enabling act – for this would be against German constitutional law:

The Basic Law does not grant the German state bodies powers to transfer sovereign powers in such a way that their exercise can independently establish other competences for the European Union. It prohibits the transfer of competence to decide on its own competence (Kompetenz-Kompetenz). The act approving a treaty amending a European Treaty and the national accompanying laws must therefore be such that European integration continues to take place according to the principle of conferral without the possibility for the European Union of taking possession of Kompetenz-Kompetenz or to violate the Member States’ constitutional identity.

There’s lots more of interest there – though precise interpretations of the significance of many of the details are a tad tricky for me to provide with my, *ahem*, less than perfect knowledge of German constitutional law. Nonetheless, it’s a bit of EU geek heaven – and, I’m sure you’ll agree, a lot of those definitions of what the EU’s competences are and should be (as well as the implicit restrictions made on certain aspects of future European integration) are likely to prove invaluable in the years to come as the EU continues to try and work out its purpose and direction.

Because, lest we forget, Lisbon actually is really little more than the tidying-up exercise that it has been claimed as. Yes, it introduces a few new aspects that some may see as worrying – but it still hasn’t solved the fundamental problems of EU governance and the relationships between the member states that have arisen since the expansion to 25 (now 27 – and soon likely to be 29). Almost as soon as Lisbon is ratified, work will have to begin on its successor – and these rulings by the German Constituional Court will, with any luck, provide useful guidelines for the next batch of EU reformers.

The Speaker elections: Some perspective

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The MP expenses scandal has rocked Westminster for over a month now (with more revelations *still* emerging). Many MPs have found their careers cut short – among them Speaker Michael Martin (a man who never should have got the job back in 2000, but that’s beside the point).

As is the way of things these days, public and press outrage over the perceived piss-taking by MPs of all parties has led parliament to jump to entirely the wrong conclusion. In hunting for a scapegoat, they picked on Michael Martin; in the process, they tarnished the office of Speaker itself with smears designed primarily to hit this man they had collectively decided to blame. “Oh,” they said, “If only we had someone like Boothroyd or Weatherill this never would have happened!” Yet despite professing that it was the man, not the office, which had been found wanting, it looks as if the next Speaker is intended to “update” and “make relevant” an institution that has doing very well, thank you very much, without any meddling from mere gadfly politicians.

Altering the office of Speaker is not what is required. That way lies failure and recrimination down the line. Because we cannot do constitutional reform – not when it’s hasty; not when it’s carried out by politicians; and most especially, it would seem, not when it’s carried out by the lot we’ve got at the moment. (Remember the half-arsed attempt to reform the House of Lords, that has left us in an arguably worse situation than we had before? The dismal attempt to abolish the office of Lord Chancellor? The various residual angers and squabbles over devolution? The back-of-an-envelope creation of a supreme court? The constant renaming of government departments, often at vast expense and with no discernible impact? The gradual downscaling of both the Cabinet and parliament, hand-in-hand with the politicisation of the previously stringently impartial civil service?)

The office of Speaker has been brought into disrepute? One Speaker’s failures over a nine-year period is enough to destroy the respectability of a position that has existed (more or less) since the 14th century? By the same logic, shouldn’t we abolish the office of Prime Minister about now?

What we need is not to alter the office of Speaker and “make it more relevant”, as seems to be the buzz phrase at the moment. We need someone respectable, unimpeachable, with an intricate understanding of the rules of parliament (something Martin never had), a sense of the history of the place, and an ability to stand up for what’s right in the face of overwhelming opposition from a chamber full of shouty, petulant MPs.

Few of the candidates can live up to this:

- Margaret Beckett is a party animal through and through, heavily implicated in the expenses scandal
- Sir Alan Beith is another party man – and to have former deputy leader of any party take over such a high profile position at this stage is just silly, even if he is only a Lib Dem
- Sir George Young is a former Secretary of State, and therefore he too has too much of the party man about him
- John Bercow is both incredibly smug and, with only 12 years in the Commons, too inexperienced
- Parmjit Dhanda only entered the Commons in 2001, so just cannot be taken seriously no matter how intelligent and earnest he may seem
- Anne Widdecombe is more a TV personality than a politician these days, and is stepping down at the next election anyway, so really – what’s the point?
- Sir Alan Haselhurst put £12,000 on his expenses for gardening over four years, based on a figure just £1 below the receipt threshold every month throughout that time, so surely can no longer be a contender
- Richard Shepherd is a man of principle, no doubt, but with the ongoing difficulties over the positioning of the UK within the EU I can’t see the Commons going for one of the most fervent of the Maastricht rebels (plus he’s a friend of Robert Kilroy-Silk, which must show poor judgement, surely?)

Which leaves us with two genuinely decent candidates: Sir Michael Lord, and Sir Patrick Cormack. Both Tories? Yes. Both with Knighthoods? Yes. Between them, they have 65 years in the House (39 of those Cormack). Lord, like Shepherd, was a Maastricht rebel – but I wouldn’t discount him for that, as it does, after all, show some independence. More impressively, however, Cormack was a Poll Tax rebel – one of the very few Tories to refuse to support that most unpopular of policies, and was also the first MP to force a debate on the Yugoslav crisis in the 1990s – much against the wishes of the then government (which was, yes, Tory again).

Yes, I’m biased here – I used to work for Cormack. This does, however, also mean that I’ve seen his character up close and know him to be a man with a genuine, passionate belief in doing the right thing. The Telegraph’s Ben Brogan seems to see much of the same in him that I do.

If you want to return a sense of decorum to the Commons, what better than someone who knows the place inside out, with four decades’ experience? What better than someone who’s been through ten general elections and seven Prime Ministers, who’s seen countless MPs come and go – and yet has, throughout, watched the institution of parliament endure, despite all the scandals, all the infighting, all the failures and ill-considered reforms?

We don’t need a big media star – the Speaker should never *be* high-profile, that was part of the reason Martin had to go – we need someone who can command quiet respect. We don’t need rapid reform – we need someone with a sense of perspective who can take a step back and calmly assess, because that is what the Commons has been lacking above all during the last few weeks. Cormack would be ideal.

Which is, of course, why he almost certainly won’t get it. When was the last time MPs voted for something to do with the running of parliament that actually makes sense?

Models for an EU superstate?

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The United States of Europe?For those coming in late, the superstate series so far:
- The danger of Jean Monnet
- Why EU superstate conspiracy theories are nonsense
- Four points and a question for eurosceptics who believe in the advancing EU superstate
- EU competence creep, the spectre of the superstate, and how governments actually work

As I’ve set out several times, I don’t see an EU superstate as a realistic possibility at any point in the next hundred years – not even the next three hundred years. For me, this isn’t a problem. Our grandchilren’s grandchildren’s grandchildren are unlikely to have any of the same concerns that we do today – and as the Anglo-Scottish union of 1707 has proven nicely, national/cultural identities are more than capable of surviving political union (hell, in Scotland’s case the national identity has arguably got even stronger since the Acts of Union). As such, if – over the course of the next few centuries – it proves to be in the best economic interest of the peoples of Europe for a “superstate” of some description to emerge from the present EU, so what? We’ll all be long dead.

But if such a superstate were to emerge, what would it look like? On one of those previous superstate posts (all of which have got healthy discussions in the comments – despite various sidetracks into insane detail about trucking and jam), helpful contributor French Derek argues that

“a federal state of 27 nations, each with their own languages, cultures, economic models, etc would be impossible to govern”

However, there are two cases where something similar to this has come about – Russia and India. Could these provide us with a vision of a future European superstate and clues about a model to follow?

Where the EU is made up of 27 member states with 23 official languages (and a bunch of other, less widely-used ones ranging from Cornish in the UK and Frisian in Denmark/Germany through more widely-used unofficial languages like Russian, Ukrainian and Romani), the Russian Federation is made up of 21 semi-autonomous republics (plus various self-governing cities, oblasts, okrugs, etc. making up a total of 83 federal subjects) and has 27 official languages), while India is made up of 28 states (and a few additional semi-autonomous regions) with 29 languages spoken by more than a million people (and 122 spoken by more than 100,000). Neither country – much like the EU – could be considered to be ethnically or religiously homogenous.

But the fact remains that both federal states continue to function, despite insanely complex internal demographics (far more so than the United States of America – the federal model most often used as a point of comparison with any future EU superstate). Naturally, the size of their populations are not entirely comparable – Russia’s population is c.145 million (about a third of the EU’s 500 million) and India’s c.1.17 billion (about twice the EU’s population), while the US’ population of c.300 million is about two thirds that of the EU. But still – India’s size is similar at 1.3 million square miles as opposed to the EU’s 1.6 million (compared the the USA’s 3.6 million and Russia’s 6.7 million) – so who’s to say that either population or geographical area is a factor in the functioning of an effective federal state?

Of course, in the case of both Russia and India (as well as, arguably, that of the US), their current situation came about after centuries of war and conquest – unlike the EU’s entirely peaceful formation – and whether either Russia or India can be considered to be effectively governed is another matter entirely. But Russia, India and the US nonetheless are all examples of large federal states that manage to work – in India and the US with more or less effective democracies that have both seen minorities elected to the highest office in the land (Obama in the US, obviously, but also Indian Prime Minister Manmohan Singh, a Sikh). In both India and Russia (and arguably some parts of the US as well, with the various secessionist movements), the various federal states and regions have often retained a strong sense of identity and autonomy – just as have Scotland and Wales (among others) in the much smaller federal state that is the United Kingdom. Both India and Russia also retain some violent paramilitary nationalist/minority elements that occasionally cause trouble (much like in the federal state of Spain with ETA, or the UK with the various Irish republican groups of the last few decades).

So large federal states with complex demographics can exist and function with the constituent parts retaining their own national/cultural identites.

But can they hold together? India was far larger than it now is when under British rule – once the Raj left 60 years ago, Partition tore the country in three in a bloody horror the tensions of which remain to this day. With the end of the Cold War and fall of the Communist Party, various parts of the old USSR (Belarus, Ukraine, Georgia, etc. etc.) broke away from Russia – and other regions, most notably Chechnya, have continued as part of the federation only under threat of force. The United States was torn apart by civil war less than a century after its formation.

Indeed, it’s arguable that Russia and India continue to hold together largely due to fear of “the other” – the perceived threat of the West in Russia (hence the rampant popularity of the nationalistic Putin and co), and the genuine threat of Pakistan in India (the threat of India in turn acting as a unifying device for the fragile federation of Pakistan). The United States originally came together thanks to the threat of Britain, while England emerged from the Heptarchy under the threat of the Vikings, France from the threat of England, Spain and the Holy Roman Empire, modern federal Germany from a series of unifying wars with various neighbours under Bismark – and so on and so on.

In all cases, the sense of identity – “I am Russian”, “I am Indian”, “I am American”, “I am English”, “I am French”, “I am German” and all the rest – emerged due to a growing sense that another group of people were both somehow different and a threat. (Welsh national identity is a prime case in point – such a thing didn’t even exist until England started to invade what is now Wales, with the entire region made up of little more than warring tribes and principalities until they were given a unifying force, and existed as one kingdom only once – and then for just seven years – until the English conquest was completed and Wales in its current form was created. The same unifying, nationalising effect can also be seen in Scotland, where medieval English invasions likewise fostered a sense of Scottish national identity that helped bring the warring clans together.)

But what is the European Union’s threat? Who is “the other” for the EU that can foster a sense of European identity? With the current ongoing arguments over Turkish EU entry – not to mention the rise in tensions between Islam and the West of the last decade, the Islamist terror attacks in Madrid and London, and the perennial Europe-wide tensions over immigration – is “the other” for the EU going to be Islam? With the increasingly frequent stand-offs between the EU and Moscow over energy supplies and the autonomy of states on the European fringe, could it be Russia? For a while under the Bush administration and in the aftermath of the invasion of Iraq, it even looked like it might be America.

But whatever the “threat” – real or simply perceived – might turn out to be, it is hard to see a truly European identity begin to emerge without a greater sense of what being European is *not*. “We are American because we are not British”, “We are English because we are not Viking”, “We are Welsh/Scottish because we are not English” – this is how national identity has always begun.

So, while I disagree that the EU is too big and complex to form a superstate, I do maintain that such a thing remains unlikely. You can legislate to create political and economic integration, you can forge agreements between different territories and different cultures – but you cannot legislate or negotiate to build a sense of identity. Without that sense of identity – “I am American”, “I am Indian”, “I am Russian” – none of those three existing sprawling federations would be able to hold together. Of the EU’s 500 million citizens, how many really feel “European” to the extent that an American feels American, a Russian Russian or an Indian Indian? Hell – we can’t even agree on what Europe is – how can we know what it is to be European?

EU competence creep, the spectre of the superstate, and how governments actually work

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In our last little discussion of the likelihood of an EU superstate (in amongst and partially as an offshoot of the rather silly sidetrack about jam), Josef noted that

there is a concern that this is how the EU will form itself into a “superstate.” Not through a series of demi-democratic treaties, but through a sort of slow, suffocating creep of boring, incomprehensible, impenetrable legislation. If you write a follow up post, Nosemonkey/J Clive, then I’d be interested to hear your take on this.

This is always a danger with any democratic system which relies largely on a more or less bureaucratic civil service to get things done. We like to think that all new legislation is debated and scrutinised by our elected representatives, dissected in minute detail and put to a vote considering only the best interests of the people – but it rarely happens like that.

In the UK, the vast majority of primary legislation is passed in the form of statutory instruments – new laws drawn up by civil servants and government ministers and put onto the statute books without (most of the time) parliament so much as being informed. In the UK in 2008 alone, there were 3,399 statutory instruments passed – that’s more than nine new laws a day that have come into existence without so much as a by your leave from an elected official. (That’s about average for the last 20 years, by the by – the number of statutory instruments began to creep up under Major, but have remained relatively constant since the mid-1990s, despite various claims that Blair used them more than any previous Prime Minister as another way of bypassing parliament.)

The vast majority of these statutory instruments are amendments to existing Acts of Parliament, fiddling with the details (most of them minor). Our last little debate got sidetracked on the use of apple geranium in jams other than those made with quince. Hardly the sort of thing – the logic goes – that it’s worth wasting parliament’s time with, and so precisely the sort of thing that would be sorted out in a statutory instrument. If the approval of British MEPs was needed for each of the law changes that statutory instruments bring in, then every one of the British parliament’s 646 MPs would have to go through more than five of the things every single day of the year – as well as all the major legislation, dealing with constituency concerns, being part of the government, holding the government to account and so on. (Remove those MPs who hold government office, it’d be more like 7 statutory instruments each to scrutinise and research the utility of per day – that’s a full-time job…)

In the EU, we have much the same problem. Having accepted the general principle that area X is best dealt with at EU level, it is impractical for MEPs to then scrutinise every subsequent tiny bit of legislation to ensure that it meets their high standards, and vote on every tiny clause about different types of fruit preserve in full session at the European Parliament. Because just as we, the people, delegate our powers of decision to our representatives at Westminster and Brussels/Strasbourg, so our representatives then delegate powers of drafting new laws to the various civil servants, be they in national civil services or the European Commission.

(At which point it’s worth noting that most EU legislation is not actually drawn up by the Commission – the EC only has a staff of c.38,000 – less than a third of that of the UK Department of Work and Pensions alone, and nowhere near enough to do everything that the Commission is accused of doing. Instead, pretty much all EU legislation is drawn up by the civil servants of the various member states, checked by civil servants in other member states, and then rubber-stamped by the Commission once it’s been looked at my enough bureaucrats in enough member states.)

And so in the normal course of events, yes – dozens of new laws will likely come into force every week without having been so much as glanced at by an elected official. But such developed social systems as ours could not possibly function any other way – unless you think that the civil service should be elected, and that it’s a practical possibility to find several hundred thousand people willing to campaign for such a thankless job (not to mention several hundred thousand people willing to turn out and vote on what would prove to be an almost daily basis as retirement and transfers necessitate by-elections to fill vacant posts…) And in any case, the general principles are already always voted on by elected representatives at both national and EU level – as long as they are doing their jobs properly, they shouldn’t vote through sweeping new powers that would allow unelected bodies or people to suddenly advance major changed without anyone checking them first. (Though that’s not to say that there isn’t always a danger that this could happen, as we found out in the UK only recently with the – thankfully defeated – Legislative and Regulatory Reform Bill, which would effectively have made parliament obsolete and allowed any government minister to make any law they liked, when they liked.)

When it comes to the EU, the real fear of competence creep was epitomised by this glorious clause (Article 308 EC):

If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.

In other words, the EU could grant itself whatever powers it liked. Or, at least, it could after unanimous agreement from the governments of the member states in the Council, and after being passed by the elected representatives of the European Parliament – but most anti-EU types conflate Council, Parliament and Commission into one monolithic-sounding “EU” to make these things sound more scary.

So, for more powers to pass to the EU, even with the existence of the “competence clause”, you’d still need unanimous agreement between the governments of all 27 member states, plus a majority in the European Parliament. Hardly that scary – but even so, the Lisbon Treaty amended that same article (now Article 352) to clearly delineate (in line with the subsidiarity principle introduced with Maastricht back in 1992) just where competences lie between the EU and member states, as well as explicitly excluding common foreign and security policy as an area where the competence clause could be used to grant the EU more powers.

Oh yes, and Article 352 also introduced a new clause obliging the Commission to involve national parliaments in any moves to grant the EU more powers. So that’s unanimous agreement by all 27 member state governments, passing a vote in the European Parliament, and passing votes in the parliaments of all 27 member states before the EU can claim any major new powers for itself. Hardly a major worry.

In the meantime, life will continue as normal, with dozens upon dozens of minor changes to minor laws being brought into force merely by civil servants via statutory instruments and their equivalents across Europe – and then (despite some of the claims made in our last comment thread that alterations to jam legislation would require ratification by the Council, Parliament, and so on) amended just as easily if they turn out not to be workable.

Is there a danger that some of these laws will be bad ones? Of course there is. But at least they are generally being drawn up by civil servants who are experts in their field (rather than members of parliament who tend to be generalists), and at least they can be corrected with ease.

Is there a danger that such civil servant-drafted laws could slowly grant more power to institutions that we aren’t willing to give them? Well, a poorly-worded new law always has the potential to be misinterpreted. That’s what we have judges and courts for – if such poorly-worded laws are found, they can be challenged and struck down, if a simple amendment isn’t enough. After all, both the existing Article 308 and the proposed new Article 352 explicitly state that both the Council and the Parliament have to approve any new EU power-grab – and treaty law will always take precedence in such cases.

In short: Modern western liberal democracies are very complex systems, packed full of checks and balances that have been worked out over the course of many centuries. The EU is not a true liberal democracy, but shares many of its forms and functions. As such, I remain confident that there are enough checks and balances in place to ensure that the only way the EU will gain more powers is if the member states of the EU want to delegate more powers to it. It will not -can not – happen by accident. Unlike in the British system, where bad laws like the Legislative and Regulatory Reform Bill can easily slip through parliament if the government has a sufficient majority and MPs are sufficiently cowed, the EU has 27 additional chances of spotting them before they get anywhere near the statute books – something that the Lisbon Treaty would only have underscored by bringing national parliaments into the equation as well. Once again, it’s hardly the stuff of an impending superstate.

The constitutional position of European Commissioners

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Today sees Britain’s new European Commissioner, Baroness Ashton, appear before the European Parliament. You never know – something interesting might crop up. Her answers to the usual written questions can be found here. Not much to get excited about, though the anti-EU crowd will no doubt leap on her first justification for her appointment:

“As Leader of the House of Lords, I steered the Lisbon Treaty through that House.”

Perhaps more interesting is a different constitutional issue – that of whether life peer Ashton can be fully independent in her new role – as raised by Jon Worth. Be warned, this one may go on a bit, and I doubt there’ll be many definite answers…

Two swordsIt is, in short, the age-old problem of whether it’s possible to serve two masters – a dispute that’s been ongoing ever since medieval times when increasingly powerful monarchs began to object to the authority of the Papacy, first properly expressed by Pope Gelasius back in 494 in what has come to be known as two swords theory. How can one swear an oath of allegiance to both Pope and monarch? What happens when they come into dispute? This was the very problem – well, part of a larger, more complex problem – that caused England’s break from Rome back in the reign of Henry VIII, the bitter Investiture Controversy during the time of Pope Gregory VII, and countless other spats down the years.

Currently, European Commissioners have to take an oath (PDF) that includes the following:

“I do solemnly undertake: to be completely independent in the performance of my duties, in the general interest of the Communities; in the performance of these duties, neither to seek nor to take instructions from any government or from any other body”

Is this compatible with Ashton’s oath of allegiance to the Queen, sworn on taking up her seat in the House of Lords? Ashton seems to think it’s not a problem:

“For the term of my mandate as Commissioner I have taken leave of absence from the Lords. This means in practice that, although I retain my title, I would not attend the House of Lords, nor take part in votes, give speeches there, or draw any allowances during the period of my mandate.”

All well and good – as according to the Code of Conduct for European Commissioners (PDF), “Commissioners may hold honorary, unpaid posts in political, cultural, artistic or charitable foundations”. But it doesn’t quite answer the question. Can you hold allegiance to the Queen while being “completely independent”?

As life peers who become MEPs have to give up their peerages (something Ashton claims she is unable to do), surely the same should apply to Commissioners – not least because they are explicitly supposed to be acting for the good of the whole of the EU, not just their respective countries. It’s an ongoing problem for British politicians, almost all of whom – if they end up sent to the Commission – will have taken not just the oath of allegiance, but the far more explicit oath sworn by members of the Privy Council (PDF):

“You will to your uttermost bear Faith and Allegiance to the Queen’s Majesty; and will assist and defend all civil and temporal Jurisdictions, Pre-eminences, and Authorities, granted to Her Majesty and annexed to the Crown by Acts of Parliament, or otherwise, against all Foreign Princes, Persons, Prelates, States, or Potentates.”

It’s hard not to see this as incompatible with the Commissioners’ oath to be independent and act “in the interest of the communities” – so little wonder UKIP’s Nigel Farrage raised the point on Peter Mandelson’s appointment to the Commission four years ago.

The question of where a European Commissioner’s loyalties lie is a vital one – especially with the ongoing moves to reduce their number, so that not all member states will have a Commissioner of their own nationality. Is Ashton’s first allegiance to the Queen, or to the European Union? It’s not hard to see how anti-EU types could start to ask how can she defend Her Majesty’s “temporal Jurisdictions, Pre-eminences, and Authorities” while working for an organisation that pushes for a pooling of national powers. But turn that around – how can pro-EU types not ask how someone who’s taken an oath to defend national powers can work for the good of the Union? It’s not like it would be hard to pass a quick statutory instrument to absolve British Commissioners from their previous oaths for the duration of their terms. So why haven’t we?

Is the Privy Council oath meaningless? And if so, why does that organisation remain part of the governance of Britain? Or is the oath the Commissioners take meaningless? And if so what does this say about the role of the Commission? Where do Commissioners’ loyalties lie – with the EU, or with their home nations? Because if it’s the latter, the Commission is incapable of fulfilling its allotted task.

What is the EU for? (Part 2)

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This started off as a reply to comments on this post, but got a bit lengthy…

EU Constitution mastermind Valery Giscard D'Estaing

The Convention on the Future of Europe (which drew up the failed EU Constitution) was, in its early stages, a step in the right direction. But – vitally – the public were never fully brought on board despite this being one of the key aims mentioned in the inaugural meeting (and despite the website being quite good, I don’t recall much press coverage or wider debate at the time, nor much effort being made to canvas the views of the peoples of Europe). It ended up being a grand talking-shop for a bunch of lobbyists and politicians (if a slightly wider group of politicians than usual in EU treaty-writing), and coming up with something so vast and complex that it could never be understood by the people it was supposed to sell itself to (though at least it was better on this front than the Lisbon Treaty, I suppose).

It also, as far as I can tell, went far beyond its initial remit – to simplify and clarify the meaning of previous treaties, define the limits of the EU’s power in line with the subsidiarity concept, and push for greater democracy, efficiency and transparency – while not going far enough on any of those main points. It certainly failed dismally in clarifying what the old treaties meant, at any rate – and hell, even the Charter of Fundamental Rights ended up being something countries – i.e. the UK – could opt out of, despite that being another key issue highlighted in the wake of Nice… (Here’s probably not the place to have a moan about what that document includes as fundamental rights, many of which are not so much “rights” as “privileges”…)

What I’d like to see happen (though I have no illusions that it will) now that the Lisbon Treaty also seems to be dying is the birth of a genuine, Europe-wide discussion of the kind Peter mentioned in his first comment – hell, even debates conducted within each state (like that in France in the run-up to their 2005 referendum) would be a start. The Commission’s been making some decent efforts over the last few years, and Margot Wallstrom‘s convinced me that she truly would like a genuine debate while making some good first steps in the right direction – but so far none of these have really taken off, or gone anywhere near far enough.

But this is vital – fundamental. Get the people thinking about the EU, rather than just ignoring it. Get them talking about it. Get them to say what they think it is and what it should be for. Because I’m pretty certain that currently no one knows – and if our representatives at these meetings are starting from a position of ignorance about what the people they are representing actually want, little wonder that they end up with something that the people then reject.

Bruno‘s definitely right about the split between the political establishment and the people. Only the real problem, I’d say, is not at EU level – I’d again agree with Peter (in his second comment), and say it’s the national politicians who are the problem. They don’t know what their people want from the EU, because the people themselves don’t know. But rather than try to get their people thinking and talking about it so they can then, y’know, represent their people, they take the “father knows best” line and forge ahead regardless – in the process constructing an EU without any real guiding principles or final goals, and that the people who have to live with it have had no say in creating.

You wouldn’t start constructing a building with no plans, no idea of the number of floors, rooms, windows and doors, and no idea what the people who are going to be using it are going to be using it for. Yet that’s precisely what’s been happening with the EU for decades. It’s no longer (if it ever was) just a trading block. It’s no longer (if it ever was) heading towards a federal superstate. It’s something altogether new and altogether misunderstood – because the EU itself doesn’t know what it is or what it’s for.

Until the EU works out what it’s for – a purpose that really must be set by the peoples of Europe if it’s going to have any chance at long-term survival – the same unproductive nonsense is going to continue ad infinitum.

(For more along these lines, check out What is the EU for? (Part 1) and the dLiberation blog I did for openDemocracy last year, focussing pretty much exclusively on the problems of getting the people to participate meaningfully in EU reform…)

States of mind

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With Kosovo having just declared independence this weekend, it’s time for a look at some of Europe’s other wannabe countries.

Following Vladimir Putin’s largely fair comments about European double-standards over Kosovan independence, it’s certainly worth looking at other wannabe European countries that the EU could technically recognise, once the precedent’s been set. And if not the EU, why not Russia, just to piss Brussels off?

Some are more economically viable, some less; some are more uniform in their national identity, some more controversial; some are more of a joke. But all, really, have similar claims to independent status as Kosovo – and many are associated with the European Parliament’s European Free Alliance group. There’s a surprisingly large number of aspirant Utopias:

Utopia, the ultimate dream state
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Scotland’s debt to Canada

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The new Scottish

Not having particularly kept up with Scottish politics after the ’45, and despite having close Scottish relations involved on the fringe of the Scottish political scene, the niceties of the devolution settlement have largely eluded me. I’ve only made it up to Scotland once since devolution anyway, and spent the majority of the trip in the remote Highlands getting boozed up on fine whisky.

You’d think that for someone with a keen interest in British constitutional history I’d have paid more attention, considering that devolution was always – potentially – the most significant constitutional change since universal suffrage was introduced. I just never really thought it would have legs, and that the entire experiment would end up being scrapped once it was shown to be a huge waste of money. More fool me, it would seem, as it appears that something very odd indeed may be happening north of the border.

Because, you see, in constitutional and international legal terms, terminology is hugely important. Call the Scottish political executive an executive, fine. Call it a government? Well, it’s not, is it? It has elements of the powers of a government, but it’s merely a subservient element of the federation that is the United Kingdom, surely?
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Home Office to be split in two?

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About bloody time, considering how unweildy the department has evidently become.

The big question (other than what the hell are the precisely plans?) is, why let the news slip out at 9pm on a Saturday night? Wouldn’t this count as the sort of major reform that eveyone’s been saying is needed for ages, and that could get the government a bit of good will back – especially needed following yesterday’s “cash for peerages” arrest of one of Tony Blair’s senior aides? Why bury it at a weekend?

Still, sounds like it’ll be worth getting the Sunday Telegraph tomorrow to see what [tag]John Reid[/tag]‘s got to say for himself… Is this another case of “I’m not going for the Labour leadership, no siree…”? (Especially as Gordon Brown’s out of the country, so will be unable to hit back straight away…)

Sunday update: Reid outlines his plans in the Telegraph. Well, I say “outlines his plans” – it’s more an extended apologia and self-justification, with very little in the way of concrete proposals for how to actually implement a break-up. Still, apparently Support grows for Home Office split, because good old Charlie “I know little and care less about how the British constitution functions” Falconer (aka Tony Blair’s ex-flatmate, aka the Lord Chancellor, aka the Secretary of State for Constitutional Affairs) is lending his considerable weight to the idea.

Blair and the death of society

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He really just doesn’t get it, does he?

“A new contract between the state and the citizen setting out what individuals must do in return for quality services from hospitals, schools and the police is one of the key proposals emerging from a Downing Street initiated policy review.”

Does he even get what the “social contract” is all about? It’s one of the fundamental ideas underlying the British political system, not to mention the birth of modern concepts of liberty and liberalism. Blair’s decision to bring it up – though in a deeply, almost offensively garbled manner – shows once again that his understanding of political theory is rooted firmly in the 17th century. And not the right bit, either: this is Hobbes, not Locke.

You see, the fundamental things that Blair’s missing are that

  • a) the social contract is a theoretical concept to explain the development of political subjugation and interrelationships, not a physical, legally-binding piece of paper of the kind he’d have us all sign
  • b) the social contract is not imposed upon the people by the state, but upon the state by the people, outlining just what government owes its citizens in order for them to continue to owe the government allegiance

Ignoring the royalist Hobbes (the interpretation of whose theories is, in any case, fraught with ambiguities), in the past, the concept of the social contract was generally advanced from below – the people giving away some aspect of their rights to the state, usually in return for guarantees from the state of protection, order and such like. When contract theory began to advance was usually at time of crisis – during and after the English Civil War, following the deposition of James II at the Glorious Revolution, during the French Revolution and during the American War of Independence. On each occasion, the concept of the social contract was used to demonstrate that the state had betrayed its side of the bargain, not that the people owed more to the state.

Of course, a written social contract could work fine, were – say – the state to agree that if it failed to provide adequate policing, schooling etc. then the citizens affected would no longer have any obligation to pay taxes. But the Blair version of the social contract is a complex and inconsistent beast that seems merely to heap yet more obligations on to the citizen, while removing responsibilities from the state based on the actions of individual citizens. At a glance, and assuming some logical consistency and, well, common decency and reciprocity within the plan, removing obligations from the state might sound like a good thing to some – small government and all that – but this is Blair we’re talking about. Please note the ominous words in that Guardian report,

“what is expected from citizens (beyond paying taxes and obeying the law)” (emphasis mine)

This is not about reducing the size and scope of state/governmental control, but increasing it – because nowhere is mention made of us mere citizens (well, subjects, actually) gaining anything new out of this proposed contract system.

In the original concept of the social contract, the benefits were obvious – peace and security rather than anarchy and chaos. The suggestions of what these new contracts could be made to do include conditions on access to the NHS, to education and even (implicity) to the police’s protection. Blair’s cunning concept of the contract is to reduce the state’s own obligations while increasing those of the people, so that it will be the people to blame when everything comes crashing down – for not upholding their end of the deal.

To an extent, this is a logical offshoot of Blair’s constant efforts to shift the blame throughout his time in office – be it Scottish and Welsh devolution (giving the new executives just enough power to be able to blame them when they cock it up, but not enough so that Downing Street can’t claim a hand in their successes), the localisation of public spending and law-making (again, enough power to blame the councils for tax hikes, but not too much so that central government can’t claim to be the source of beneficial reforms), the whole idea of allowing hospitals and schools to determine their own spending priorities and the like.

Tony has rarely been directly responsible for the failures of the last nine years – he’s always made sure there’s a slight buffer between him and having to take responsibility for his decisions. Even to the extent of (it would seem) trying to set up his mate Lord Levy as fall guy for the loans scandal, and ensuring his other mate, Lord Goldsmith, fixed his legal advice to support the Iraq war to allow Tony to simply say “but the lawyer said it was right, blame him”.

With this new cunning plan, however, (especially with the idea of “individual contracts between parents and schools” implying microscopic levels of detail), Blair would finally divest himself of all legal responsibility towards the people. Anything goes wrong, any public service fails to get delivered – “ah, but you didn’t abide by the terms of your contract”.

Once again, it seems, Blair needs to update his political philosophy library. Rather than this silly fixation with Hobbes, he should get up to speed with Locke, Rousseau, and the American Revolutionaries. Perhaps, most importantly, he should take heed of Proudhon:

“What really is the Social Contract? An agreement of the citizen with the government? No… The social contract is an agreement of man with man; an agreement from which must result what we call society.”

Because, as Rousseau pointed out, with the social contract what is created is a collective will and a collective, mutual responsibility:

“Each of us places his person and authority under the supreme direction of the general will, and the group receives each individual as an indivisible part of the whole”

What Blair is proposing, in forcing a literal, physical contract between the state and individual citizens, is a destruction of this collective obligation between citizens. He is proposing the destruction of society itself.

Update: A Blair and Hobbes footnote

A passage from Chapter 15 of Jonathan Israel‘s superb Radical Enlightenment: Philosophy and the Making of Modernity 1650-1750 (Oxford University Press, 2001), on Hobbes’ conception of liberty – which bears some striking parallels to Blair’s apparent belief system:

“In Hobbes, liberty of the individual is reduced to that sphere which the sovereign, and laws of the State, do not seek to control: ‘the liberty of a subject, lyeth therefore only in those things, which in regulating their actions, the sovereign hath praetermitted’…

“All participation in the political process, the making of law, and forming of opinion is hence excluded. Hobbes indeed disparages the republican, or positive, concept of freedom… Such liberty he deems antithetical not only to monarchy but to political continuity and stability, accusing those addicted to such ideas of ‘favouring tumults’ and ‘licentious controlling the actions of their sovereigns’. The political liberty republicans extol he considers a ruinious illusion, a mythology manipulated by agitators and factions for their own ends, to undermine and weaken the sovereign.”

Replace “republican” with “liberal”, you’ve pretty much got Blair’s attitude…

The Enabling Act

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In case you’ve come in late, a handy summary of the current state of the nation. If what is said sounds alarming and over-the-top, that’s largely because the legislation it’s discussing is also alarming and over-the-top:
“Tyranny is sidling in. It is entering with face averted, under cover of a host of laws whose ostensible purpose is the reverse of their actual effect…

“The Regulatory Reform Bill is an Enabling Act, identical in spirit to the one the Nazis passed in 1933. On that occasion, Hitler promised that ‘the government will make use of these powers only insofar as they are essential for carrying out vitally necessary measures…

‘The number of cases in which an internal necessity exists for having recourse to such a law is a limited one.’ Our Government says much the same about the legislation it is passing today…

“But our concern should not be with today or tomorrow, but with the day after tomorrow, when different, nastier politicians might be in power, and the habits of decency and common sense have been even further eroded.”

Legislative and Regulatory Reform Bill update

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Don’t know how I’d missed this, but should be required reading on the devious Legislative and Regulatory Reform Bill. Unity has uncovered the list of Acts of Parliament rejected for exemption from the new powers for ministers to amend as they deem fit with no public scrutiny. It is a list with, shall we say, worrying implications. And yes, that is indeed the famous English understatement…

Magna Carta and Civil Liberties

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A quickie to try and clear up a confusion I’ve seen on a few blogs around the place who seem to think that Magna Carta guarantees British (well, English) people certain freedoms:

The Magna Carta “rights” thing is a complete myth. It never granted anyone other than a few barons any liberties – the attempt to argue that it did began in the 17th century with Sir Edward Coke, and was expanded upon by the Parliamentarians to justify their entirely illegal revolt against the King. Even if it did grant any rights, hardly any of it remains in force.

In fact, there are not, nor ever have been, any guaranteed rights in this country. Not until we signed up to the UN, that is. The way the English constitution works (Scotland is rather different) ensures that nothing can possibly be guaranteed within the nation state itself – only external obligations can compel our government to abide by what many consider to be basic human rights obligations. There is not, nor ever has been, anything in English law that can secure civil liberties.

(Oh, and an additional problem? Legally speaking, any attempt to introduce a codified constitution granting inviolable legal rights to the people would itself be unconstitutional, and therefore illegal and easily repealed by any later government that wished to… The only way to ensure certain rights is to sign up to strict external obligations to force the national government to abide by set rules of conduct – one of the benefits we would have got had the now dead EU constitution been ratified and put into force.)

A bit of over-the-top historical/constitutional pedantry

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Talk Politics on top form once again, highlighting the details of deliberately confused legislation:

“The provisions which appeared in the first draft of the Bill, when glorification was a separate offence, which limit its applicability to terrorist attacks in the last twenty years plus anything before that put explicitly on a designated list by the Home Secretary is no longer part of the Bill – taken to the letter of the law, glorification covers any terrorist or terrorist act at any time in history or just terrorism in general.“

There’s a handy list including a number of the usual suspects – Nelson Mandela, George Washington etc. – who arguably used terrorist tactics (if terrorism is defined in the broad terms the government generally seems to prefer – namely “using violence to secure political ends”), just to undeline the insanity.

It’s easy to forget, however, that two of the documents most frequently held up as the foundation of the modern British political system also arose from acts which could easily be defined as terrorist.

Magna Carta was signed on 15 June 1215 as a concession following a protracted (para-)military campaign, including surprise attacks on government buildings and the assasination of leading government figures. It has practically no legal standing these days, but many hold it up as the first document extolling the virtues of the rights of the people over the state (even though it was no such thing).

More damagingly, the Glorious Revolution of 1688 was settled after a military force invited by a group of men who held no political office came to London and surrounded the Palace of Westminster until Parliament agreed to give the crown to William of Orange. A modern equivalent would be if a group of nutjob Islamic fundamentalists took it upon themselves to invite Osama Bin Laden to surround Westminster with his barmy army, intimidating our representatives into instigating Sharia law and declaring Osama to be king.

The handy thing is, as there’s no accepted definition of terrorism, it would be entirely possible to argue (and a number of historians have) that the Glorious Revolution was a terrorist act. And please note the name. That’s right, “Glorious” – glorifying terror if ever I saw it.

The post-1688 political settlement (which is in any case founded on an illegality, as the parliament which gave William the throne had no legal right to exist, and no legal right to depose James II) is usually summed up by the Bill of Rights (which, like Magna Carta has practically no impact on anything, other than as a nice(ish) ideal), but also includes the setting in stone of the concept of no one being above the law and the sovereignty of parliament.

Strictly speaking, as William III was illegally made king following his threat of force, he had no right to give away powers rightfully belonging to the crown, and none of the monarchs who followed him had any legitimacy to grant more powers either, as all of their powers as monarch were based upon an illegal power-grab founded on what was arguably an act of terrorism.

By merely being in office, Tony Blair is glorifying and legitimising terrorism. If he really meant what he says about clamping down on terrorist glorification, the current Royal Family would be booted out and the Stuart line restored in the shape of King Francis II; parliament’s powers would be greatly curtailed to remove all those it has gained since 1688; the Cabinet would be abolished along with the office of Prime Minister as the King returns to government by Privy Council; all crown lands sold or given away in the last 300 years (a sizable chunk of the country) would be returned to King Francis; all currency issued by the Bank of England would instantly be illegal for its glorification of a false monarch and for having not been issued by a legal Royal Mint; Scotland would become an independent nation once again as the Act of Union is inistantly abolished; the Elizabethan Corn Laws would return to replace the welfare state; and the majority of the population would lose its voting rights overnight as we return to male-only voting based on property qualifications.

If these things are not enacted as soon as the current Terrorism Bill passes its final vote, the government must prosecute itself for glorifying and condoning terrorism merely by existing.