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.

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 European Union emerged, as we all know, as a response to the Second World War. One of the earliest aims of the founding fathers was to prevent France and Germany from ever going to war again by integrating their economies so closely that to do so would become impossible.

As a result – as well as, arguably, thanks to prolonged feelings of guilt about what the country got up to during the 30s and 40s – Germany has long been at the forefront of European integration. Germany remains one of the most enthusiastic EU member states – despite also having the strongest economy in the EU, formerly having one of the strongest currencies, paying the most into the EU budget, getting the least back, and being by far the most under-represented (by population) in the European Parliament.

It’s long been the case – albeit usually unacknowledged – that if Germany got fed up with the EU the entire project would be in danger of tumbling down. The EU could survive largely unchanged if almost any other member state decided that enough was enough (hell, if France pulled out it would arguably be improved, as the vast chunk of Common Agricultural Policy money that gets syphoned off by Paris could be redirected to more needy countries – and many more enthusiastic europhiles argue that if Britain jumped ship then the brakes the UK keeps putting on closer integration would finally be lifted, and the EU could reach new heights). If Germany gives up on the EU, all kinds of problems would kick off – not least because the European Central Bank runs out of Frankfurt.

Well, Germany hasn’t yet got the hump, and doesn’t show any signs of doing so just yet – but it could still throw a spanner in the works. Because oddly for a country in which nationalism and national self-interest have been so deliberately, systematically repressed (unsurprisingly, considering…), its constitutional court could yet rule that the Lisbon Treaty – and, by extension, many of the principles of the way the EU currently works – is illegal for providing ways for the German national parliament to be overruled.

And so it is one of the few remaining areas of German law that looks to the German national interest could end up being the brake on the current mode of EU integration, which itself originally started to prevent Germans looking too much to their own national interest.* Whoops!

As much as the anti-Lisbon Treaty crowd have got a bad reputation in certain quarters of the Brussels beltway – not helped by the lunatic fringes to right and left (as so often) being the ones who have shouted the loudest, and the recent announcement of anti-Lisbon party Libertas’ proposed candidates for the EU elections (mostly hard-right and nationalists, making a mockery of the “broad coalition for democratic reform” claims) – the German politicians who have brought this case before the constitutional court do have a point.

After all, if a national parliament (especially one from a country with a population the size of Germany’s) – elected by the people based on long-standing principles of representative democracy – can be overruled by the EU, an organisation whose democratic legitimacy is disputed to say the least, then what place for democracy in Europe?

And so, where the last time German nationalism reared its head to threaten the peace of mind of European states it was in the form of fascist dictatorship, this time German nationalism could well be rising up in the name of democracy. Democracy based around the principle of the nation state (something I can’t profess to be overly happy with), but democracy nonetheless.

The very fact that such a case merits the constitutional court’s attention shows that the legitimacy of EU decisions and powers has not yet been universally – or even legally – acknowledged. The argument that the EU is a method of overruling democracy, meanwhile, will continue to be made as long as the European Parliament remains the weakest of the EU’s principle institutions. (Will the upcoming EU elections reverse the trend for successively declining turnouts and so strengthen the case for the EP to be given more powers? I very much doubt it. It’s a catch-22 – the EP is perceived as being weak, so people don’t bother voting, so its claims to be the people’s voice diminishes along with its ability to assert influence. Such is the joy of EU democracy.)

So I ask yet again – when is the EU going to go for the kind of radical, democratic reform that is so vital for it to maintain support, and stop tinkering about with unsatisfactory compromises like Lisbon and Nice? Without the people behind it, the EU is doomed to fail. If the people were behind it – and had a sufficiently large voice in its decisions – then cases like this German one could never be brought, and complaints about the EU’s democratic deficit would become the preserve of nutters alone.

I don’t even have to check the usual eurosceptic sources to know how the Irish government’s research into the reasons for the rejection of the Lisbon Treaty is likely to be interpreted. Because, you see, they’ve found that the reason for the No vote was that the Irish people didn’t know enough about the treaty.

Cue screams of outrage from the eurosceptic hoardes: “You see! They’re going to tell us we don’t know what’s good for us! The people are stupid! They’ll press ahead with it anyway because they can use this to show we can’t be trusted! The elitist bastards!”

Well, perhaps. There are, after all, already rumours circulating of a second referendum being planned for next year – though it’s unlikely to be before the European Parliament elections or the arrival of the new Commission. But despite the torrent of frustrated voices from across the Channel calling for a fresh vote, read between the lines and it’s quite clear that the Irish government itself has made no such plans. Yet. Hell, even the latest suggestions of a fresh vote stem merely from a briefing paper prepared for the French EU presidency – and we all know that Sarkozy’s in favour of forcing the thing through (why else would he deny the people of France a vote on a treaty so heavily based on the constitution. Briefing papers – despite the spin – are not official EU policy.

But the thing is, this new research tells us nothing new. We knew ages ago from exit polls and countless surveys before the vote that one of the major reasons for the Irish No was that the treaty (and the constitution before that) was simply too complex, vague and self-contradictory for its own good. In trying to be everything to all people during the tortuous negotiations between the various EU member states, it ended up having all the usual characteristics of a bad compromise worked out in umpteen languages – wording that could be interpreted pretty much any way you like. Not much good for a legal document – and a disaster for its advocates, as every pressure group with a grudge was able to find something to worry about.

In other words, the reason that the Irish people didn’t understand the Lisbon Treaty is because it was rubbish.

Does this mean it shouldn’t be ratified anyway? Well, that’s up to the Irish government. The EU certainly shouldn’t (and under the present rules can’t) progress without unanimity on the treaty. And if one thing is certain to bolster the anti-treaty vote, it’s a bunch of Johnny Foreigners telling the Irish that they’re stupid. Ireland’s had enough of a bunch of foreigners painting them as idiots and telling them what to do – and look how well that turned out for the foreigners in question…

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

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…)

Handy overview today from the EU Observer – worth a look for UK-centered readers as well, as these guys are the closest that Tory leader David Cameron’s got to allies on the continent, so may just provide a hint as to his as yet decidedly unclear attitude towards the EU:

A large segment of the Czech political elite makes no secret of its discontentment with EU membership. These politicians fiercely oppose further European integration, and consider the whole European project a major threat to Czech sovereignty.

President Klaus – by far the most outspoken eurosceptic in Central-Europe – made no secret of his pleasure at the Irish No. While the office of the Czech president is largely honorary, his signature is needed to round up the ratification process of the Lisbon Treaty…

More significant however is the fact the president still has considerable influence on a large segment of the Civic Democratic Party. After the Irish referendum the harsh language of Mr Klaus was echoed by several party members. CDP holds a majority in the Czech Senate where voting on the Lisbon Treaty still needs to take place.

The vote in the Czech Senate is scheduled at the end of the year, after the Constitutional Court has ruled on the compatibility of the Lisbon Treaty with the Czech constitution. Even if its verdict is positive, it is hard to predict the outcome of the vote in the Upper House.

I’m not convinced by the latter half of the article with its dire warnings of potential disaster if the Czechs vote Lisbon down, but still – worth a gander. (And if anyone knows of any English-language Czech politics blogs/news sites that are still being updated, I’d be grateful for a heads-up, as I’ve got rather out of touch over the last few years and a lot of my old bookmarks are now dead.)

Thus spake Tony Blair, echoing Gerhard Schröder, following the negotiations for the shoddy Treaty of Nice back in 2000. And yet the last eight years have seen the European Union do business in exactly the same way, time and time again – last-minute concessions, bad compromises, unimaginative and ineffective solutions to problems that sometimes didn’t exist in the first place.

The Constitution, designed to rectify the mistakes of Nice’s last-minute compromises ended up inadequate as a result. In turn, the Treaty of Lisbon ended up little more than a shoddy remix with a few contentious bits removed (though not enough for its critics).

With Lisbon on the verge of death, is there any sign of the kind of radical rethinks and approaches that may shake the EU out of its growing torpor? Well, not really. But…

Unless Ireland can be persuaded to vote again, Lisbon – which must be ratified by all 27 nations to come into force – will die and the EU will be left operating under rules agreed to at 3:25 a.m. in Nice on Dec. 11, 2000.

Increasingly, however, diplomats are wondering whether that would be such a bad thing…

True, Lisbon is designed to streamline procedures that were creaking even in 2000, when the EU had only 15 member states, and that get more unwieldy with each nation that joins. But, in some ways, Lisbon would be a step backward.

There’s a compelling case made in this IHT article. Do go and read the whole thing. Not only is it an intriguing suggestion for a way forward, pulling together a few ideas I’ve seen elsewhere and adding to them to create a coherent strategy, but it’s also a handy overview of some of the key issues Lisbon was attempting (poorly) to address.

Today marks the start of the French presidency of the EU. Sarkozy’s task as president? To guide the union from the post-Irish referendum confusion into a fresh new dawn of harmony and mutual appreciation, to an EU both truly united and sure of its purpose.

Yes, the Polish president may have refused to ratify Lisbon as well, but he’s a homophobic right-wing nutter, everyone knows that. We’ll pretend that hasn’t happened, just as we’ll pretend the Irish no vote hasn’t happened. And worst case scenario we’ll put our fingers in our ears, go “la la la la la!” whenever anyone else speaks, and then act as if we’re all singing from the same hymnsheet when we aren’t even singing from the same hymnbook. It’ll all work out fine in the end.

To wit, a case in point, from the reception the French Ambassador to the Court of St James (aka to the UK, for those not au fait with outmoded chivalry), held at the Victoria and Albert Museum in London the Saturday before last to mark the start of the French EU presidency (to which I was kindly invited):

The French Ambassador speaks, listing France’s three priorities for her presidency of the EU as:

1) Culture
2) Diversity
3) The people of Europe

Up next, a representative of the British government (whose name I didn’t catch and whom I didn’t recognise), listing what the UK thinks are the three French priorities:

1) Energy and energy security
2) Climate change
3) Migration

Followed, of course, by much shaking of hands, smiling, and mutterings about how great it was that everyone was in agreement. No mention of France focussing on more abstract concepts (in an effort to reunite the EU around core shared ideals, so entirely understandable) while the UK focusses on practicalities. No acknowledgement of the complete lack of anything in the way of similarity in what the two representatives have just stated as being the key priorities. Just carrying on regardless like a couple of deaf old ladies over tea and biscuits.

“I said let’s prioritise Climate change, Ivy.”

“Culture and diversity, you say? Why Ethel, what a lovely idea! How about doing something to get the people of Europe on board while we’re at it?”

“You’re entirely right – we really should do something about all those migrants crossing the borders.”

At this rate we’re never going to get anywhere.

Still trawling through post-Lisbon reactions and catching up with the various pieces of differing, trying to absorb as many suggestions as possible.

Via Certain Ideas of Europe I find John Vincour’s interesting take in the IHT, which makes some very good points – not least in agreeing with my ongoing contention that securing a reliable supply of energy to the continent should be acknowledged as one of the EU’s biggest concerns. He’s against my pet favourite solution of a multi-speed Europe – but for an eminently sensible reason, and with a possibly workable alternative proposal.

One of the best articles I’ve seen so far, and well worth reading in full.

Catching up on various blogs (and as part of my drive to post more frequently here, even if they are shorter pieces), a couple of interesting pieces from Cicero’s Songs – seemingly one of the few left(ish) liberal British political bloggers to have noticed the Irish Lisbon Treaty referendum result (perhaps because left(ish) liberal British political bloggers rarely seem to notice the EU – a bit of an elephant in the room, than…). In any case, both posts are well worth a read, whether you agree with them or not:

Where does the EU go from here?
“To my mind, the problem remains one of identity and legitimacy. The European Union has failed to justify, or even explain, its purpose… The EU used to define its purpose as creating ‘an ever closer union’ – in other words it had an open-ended commitment to increasing its role and the scope of its activities. The time has come for the EU to do the reverse and set the limits of its activities.”

Outvoting democracy
“As a Liberal commentary this blog believes that setting the limits to state power is a fundamental basis of freedom. The EU has been trying to change tack from ‘ever closer union’ towards more limited policy goals for some time. However the compromises embedded in the Constitutional treaty and the Lisbon treaty are simply too many and too complicated. The idea of comprehensive reform must be shelved- we can not bring either the majority of the states or the majority of the population to agreement at this point- and it is dangerous to try.

“The EU can only reconnect with the citizen if it can demonstrate that it serves a valuable purpose. Instead of the high-falutin’ words of Giscard d’Estaing’s Federalism, we should return to the practical usefulness of Functionalism.”

A few more post-Irish Referendum thoughts – because the EU really, really needs to know what it is that it should be doing if it’s to work out what is the best way forward from its ongoing Constitutional/Lisbon Treaty navel-gazing. More suggestions for priorities gratefully received in the comments.

Two starting assumptions for this list:

1) Institutional reform remains necessary (largely thanks to the short-sightedness of the earlier treaties: it is, after all, entirely possible to have rules for a club of 6 or 15 that also work for a club of 27 – it’s just that the people drawing up those rules made them inflexible), but it’s not essential for the EU to continue to function

2) Neither the Lisbon Treaty nor the Constitution really dealt with what I see as the EU’s two biggest problems (the Common Agricultural Project and the dominance of Russia in the continent’s energy supply) anyway

So, on with a few vague thoughts on the main problems and priorities, in approximate order of importance: Continue Reading

It’s the single most important question – because without an answer, how can the EU progress? Brian Barder has a good stab at providing an answer – well worth reading in full:

most of the sentiments, worries and concerns contributing to the No vote in the referendum are widely shared in many other EU countries; few are unique to Ireland, and those that are probably have similar counterparts elsewhere in the EU. The people of some EU countries differ from the Irish in exhibiting a high level of antipathy to the whole European project: the UK is certainly one of these, and some of the new eastern and central European countries (and/or their leaders) are others. Even those who are generally pro-European are often critical of the lack of transparency of many of the processes of the EU, of the centripetal tendencies of the Commission, of the failure to clean up the Union’s finances, of what is rather vaguely referred to as the democratic deficit. All such tendencies will tend to predispose a goodly number of individual European voters to vote No in a referendum on almost any proposition recommended to them by their political leaders, however intrinsically innocuous.

The only trouble with all this is, of course, that the “why” ends up complicating the issue yet further. Rather than being merely an Irish problem, or merely a European one, the Irish “no” ends up due to global concerns – and, let’s face it, what isn’t a global issue these days?

This makes the “No” problem far harder to solve, for sure. But it also surely helps underscore just how ineffective individual nation states have become at dealing with problems that are increasingly global in scale. Strength in numbers sounds like an ever safer bet the more the economy suffers jitters and the more that globalisation continues.

This is something that the whole EU can, with any luck, start to get behind – because it’s the whole reason that pretty much every member state joined in the first place. Its the economy, stupid – and I’d say it’s about time the various leaders of the various EU member states began to remember that. The fancy bits and high ideals can come later – the first step is to bolster the economic base. That was the initial aim of the European Project, after all. The EU should remember that it needs to learn to walk before it tries sprinting…

Note: This is another in an apparently ongoing series of occasional posts where I’m effectively thinking out loud. I’ll have changed my mind again in a couple of hours, most likely…

First up, Nanne’s done a handy roundup of blog reactions (with a few more from RZ) – which further goes to show that there’s no real consensus on what the hell should be done. Some more fervent pro-EU types are adopting the “sod the Irish” approach of continuing ratification and booting Ireland out of the EU if they don’t follow along like a well-trained dog. Some anti-EU types are revelling in the red faces in Brussels and calling for the whole thing to be scrapped again because (obviously) a no vote in a referendum means that every single person voting no did so because they hate the EU and everything it stands for. Neither extreme, fairly obviously, is a sensible option.

Me? I’m still at the stage of thinking out loud, so to speak – reading and writing helps me to work out what I think about things, which is why I started blogging in the first place. I’m still not sure if I’m getting anywhere on the short-term solution. Longer-term I have a far firmer idea of what I’d like to see done – but the likelihood of that coming to pass is minimal, so I’ll leave it for now.

Having read a lot of stuff about the vote over the weekend, the best comment piece I’ve seen so far comes – as so often – from the Financial Times. This quotation is somewhat selective, but gives an inkling of what’s becoming my approach:

First the French, then the Dutch and now the Irish have rejected much the same package of institutional reforms that were supposed to make an enlarged EU more effective and more democratic… Their attitude suggests a worrying gulf between EU decision-makers and popular feeling that needs a new sort of response… The No vote[s were] based on a ragbag of reasons to which there is no obvious response.”

In the FT’s take, a repeat referendum would likewise return a “No” – and I imagine the same would be the case in France and the Netherlands had they been given a chance to vote on the Lisbon Treaty as they were on the Constitution. The anger in France at the two fingers the politicians raised to the people by denying them another vote on a treaty that was so similar to a text that had already been popularly rejected is immense. Who can blame them?

Because the biggest problem facing the EU now is not the much-needed institutional reforms that Lisbon (and the constitution, and Nice) was trying to fix to help the thing function more effectively – it is that the people of Europe are increasingly starting to think that there may well be something in all those allegations of the EU being an undemocratic project of the quasi-mythical political elites for the benefit of those same elites. And you can hardly blame them – French and Dutch “No” votes have already been ignored, the Danish and Irish people have already been told to vote again when they returned the wrong result the first time, and now it looks like the inconvenience of the Irish people voting “No” again is going to lead to some kind of get-around. It’s hard to think of the last time the people of Europe were consulted and their opinions actually taken on board. In fact, I can’t think of a time this has happened – bar the odd small-scale experiment as part of the Plan D initiative over the last couple of years.

Does it matter that on numbers alone the “No” voters in Ireland are a tiny percentage of the EU’s population as a whole? Not while the rest of that population doesn’t get a vote it doesn’t – as pointed out elsewhere, so what if “only” 860,000 Irish voted “No” when the rest of the EU denies the people a vote and leaves the decision up to a mere 9,000-odd politicians? And what does it matter while the EU continues to function with its current set-up, with smaller countries given disproportionate influence to counter the dominance of those with larger populations? The Lisbon Treaty aimed to fix some of the more silly elements of this, but Maltese MEPs would continue to represent 80,000 Maltese compared to German MEPs representing 800,000 Germans – and in many areas the national veto would still have been maintained. Because part of the very point of the EU is to prevent the larger, stronger countries from dominating the continent. To ignore Ireland’s vote is therefore to go against the very essence of what the EU was set up to achieve.

(Please also note that I say all this as someone who argued repeatedly against holding referenda on the constitution and Lisbon treaty. Contradictory? Possibly – but if you hold votes you’d damned well better abide by the results. If not, the people will tend to get increasingly annoyed with you. It’s bad public relations as much as it’s bad democracy.)

In any case, the FT’s proposal for the next step is one of the least contentious I’ve seen so far, and (I hope) the most likely short-term outcome:

It would be more sensible to put the Lisbon treaty on ice for several years, and try to rescue those parts that are important, uncontentious, and capable of being carried out without treaty amendment… Europe does not need to turn the drama of the Irish No vote into a fully-fledged crisis of confidence. Everyone is fed up with negotiating new treaties. The priority should be to make the EU work better with practical policies… with its present rules and 27 member states. The Nice treaty is not ideal, but losing Lisbon should not be seen as the end of the world.

Calm-headedness is the way forward, for sure. But, as I say, the institutional problems are no longer the most pressing. What is needed now more than ever is an energetic campaign to get the people of Europe on board. Mere propaganda drives will not do it – they need to be brought into the debate and made to feel that their voices count. Because currently – with the European Parliament still largely toothless and the French, Dutch and Irish referendum results all more or less dismissed by the powers that be – you can hardly blame people for feeling that in the EU, the people count for nothing.

But considering it was largely the unconvincing zombie resurrection of the old Constitution anyway, it probably won’t be fully dead until someone’s cut its head off, put a stake through its heart, shot it repeatedly with silver bullets, smothered it in garlic-infused holy water, and tricked it into saying its name backwards three times.

Note to the EU: for Christ’s sake, can we please actually THINK about the next step this time? In detail? Preferably without the assumption that the people are too stupid to notice what you’re trying to pull on them (thus alienating them yet further from a project which seems increasingly separated from the needs of the European people) – and ideally with the people in full, genuine consultation at every stage.

The continent of Europe is far, far too diverse for such idealistic “one size fits all” projects to have any place in future EU planning – unless it’s the most basic statement of shared ideals and principles, along the lines of the American declaration of independence or the US constitution. Surely that much is obvious? Just like the American colonies – only far, far more so – Europe is not made up of one united people; we are many peoples with much shared history and culture, but with plenty that also divides us in terms of hopes, dreams and aspirations. The old Constitution, the Lisbon Treaty – hell, pretty much every EU and EEC treaty ever ratified – failed sufficiently to acknowledge this, and so failed to allay concerns. The longer this went on – especially as the EU’s power and presence seemed to continue to grow without so much as a by your leave from a democratic vote – the more annoyed, the more distrustful the people of Europe were bound to become.

The European project was started by political elites as a trade association with delusions of grandeur. It is now much, much more than that, with competence creep after competence creep. It is too unwieldy and unaccountable for the people of a continent with more than its fair experience of despotism and dictatorship not to start taking offence if it continues down the route of “what we say goes, and there’s not much you can do about it”.

I believe in the principles behind the European Union. I believe that the European Union has done far, far more good than harm both in Europe itself and worldwide. I believe that the European Union should continue. But not in the direction it is currently heading. Not with the attitude it has currently got.

The Lisbon Treaty is dead – don’t make the same mistake as last time of trying to dress up the corpse to make it look a bit different. Accept the fundamental failure of the treaty (and constitution), and accept that a far more radical solution is vital. A complete rethink. A deep, serious analysis of what the EU is and what it is for – and, most importantly, what the European people think it is for. This is something that hasn’t happened in decades, but that is absolutely essential if the EU is to avoid the further alienation of its citzens – citizens who, it should be noted, have not all been asked if they want such citizenship in the first place.

The EU has evolved gradually over the years based on vague dreams. It’s time for a reality check.

(BBC story on initial reports of the lost Irish referendum here)

Update: As the count’s not final yet (this post was written at around 15:30 UK time), keep an eye on the Irish Times’ Lisbon Treaty site, with real-time updates. The current tally is 46.3% yes, 53.7% no. Elsewhere I’ve seen turnouts estimated at 40-45% – not huge, but not bad for EU-related elections, and more than the last Irish rejection of a European treaty back in 2001, even if the margin of rejection seems to be smaller this time…