Wednesday 4 November 2009

Conservative Party: the Ghost of Referenda to Come

Conservative Europe policy has just been announced (made?) in a speech by party leader David Cameron today. Throughout he took pains to outline the reasoning behind dropping the promise for a referendum on the Lisbon Treaty - it is no longer a Treaty but (from December 1st) an integral part of European law. Moving on to what the Tories meant by "not letting matters rest", Cameron outlined several areas for change:

1. Amendment of the European Communities Act 1972, so that any new Treaty transferring power to the EU is subject to a referendum (including any decision to enter the Euro). This politically does a lot of damage to the idea of Parliamentary Sovereignty while neatly keeping it at its base.

2. The introduction of a Sovereignty Act:

"Because we have no written constitution, unlike many other EU countries, we have no explicit legal guarantee that the last word on our laws stays in Britain.

There is therefore a danger that, over time, our courts might come to regard ultimate authority as resting with the EU.

So as well as making sure that further power cannot be handed to the EU without a referendum, we will also introduce a new law, in the form of a United Kingdom Sovereignty Bill, to make it clear that ultimate authority stays in this country, in our Parliament."

Interesting in that it's the first time I've heard the "unwritten" UK constitution being bemoaned as a weakness by UK politicians - of course, the Conservatives wouldn't propose a written constitution. The idea behind the Bill seems to be that there will be a constitutional court set up* (or powers given to the Supreme Court) to examine the constitutionality of EU measures (a role that's really reserved for the European Court of Justice in Treaty law). The argument runs that the German Bundesverfassungsgericht does this already, but I wonder if it will be an appellate court (i.e. cases have to be referred to it) or a legal body that politicians refer legislation to. The problem here is that, so far, the German Constitutional Court as deferred to the judgment of the ECJ and there is no procedure or plan for what would happen if the ECJ and this new court (or the German court) came into conflict. Citing the German Court as a model isn't really citing a stable or tested example.

It will be very interesting to see the wording of the legislation. (Also, it's notable as the one policy where the Tories are proposing an increase in judicial power, instead of maliciously interfering with the remit of the courts. I wish that the UK courts could test the constitutionality of UK law the way that the ECJ tests EU law...).

3. Parliament would have to assent to any use of Treaty clauses that permit a policy area to move from unanimity to Qualified Majority Voting (by an unanimous vote).

4. A Tory government will seek an opt-out on areas of social policy, criminal justice and the Charter of Fundamental Rights. Setting aside the actual content of social policy and the usefulness of some criminal law co-operation in the context of a borderless common market, let's look at the Charter:

"We must be absolutely sure that this [the Charter] cannot be used by EU judges to re-interpret EU law affecting the UK.

Tony Blair claimed that his Government obtained an opt-out from the Charter.

But what he got – as the Government have now admitted - was simply a clarification of how it works in Britain.

We will want a complete opt-out from the Charter of Fundamental Rights."

...Because human rights are for losers, right? This is consistent with Tory opposition to any regime of binding human rights (they want to repeal the Human Rights Act 1998, which incorporates the European Convention on Human Rights into UK law). How exactly will the ECJ interpret (what exactly is "re-interpreting" law, Mr. Cameron?) in a way that the Tories fear? It's not exactly clear, apart from the general wailing and gnashing of teeth the Conservatives seem to give at the mere mention of "rights": rights are something to be feared in conservative political thought.

In any case, how practical and useful would a complete opt-out be? The Commission would draft laws with the Charter in mind, and the Council and EP must respect the Charter, so, unless they try to contravene the Charter, EU laws will mostly comply with it. So Charter compliance will ideally be the rule and not the exception of produced legislation. Regulations apply across the EU, so if the ECJ interprets a regulation into line with the Charter, would there be a different law for the UK? Or will it depend on whether or not the case comes from the UK or not, how the ECJ uses the Charter? The most practical use of the opt-out would be with national law that transposes Directives, but would this be complete enough for the Tory party?

Social Europe Journal has a good bit on the Tories' attitude to rights law in general:

"David Cameron appears never to take any legal advice on, er, laws. His puffed up ‘British Bill of Rights’ would not in any way remove any law already passed because it represents an incorporation of the ECHR (to which we are signatories) into UK law, and this is the basis on which the case law is made. The law would remain, it would just be more expensive both for claimants (many of whom have suffered intolerable abuses) and the taxpayer (all of whom will face intolerable abuse as a result)."

1-3 are all achievable by a Tory government without having to negotiate with the other member states. #4 would require Treaty change and the assent of the other 26 member states. So what concessions will the Conservatives make (as one journalist asked Cameron)?

The answer seems to be "none". The Rebate? Untouchable in the minds of the Tories and the grassroots - it's viewed as something to be defended, not traded away. Integration in other areas seems to be out of the question. As for threats? A Tory government could oppose the accession of new member states, but the party is firmly committed to the policy of enlargement, and France and Germany would jump on it as an excuse to keep out Turkey.

Could there be another Empty Chair Crisis to bring back the Luxembourg Compromise? The cause of the original dispute (France not wanting the EP to have a say over the agricultural part of the EU budget) has only been cleared with the Lisbon Treaty.

This is a Tory party that has shed almost all association or common thought with continental Christian Democracy, has dropped its tradition of pragmatism and is suspicious and hostile towards the judiciary. I can only describe the Tory party as dangerously constitutionally illiterate.

* Which would only look at the EU, of course. It couldn't look at the UK constitution, because, in the UK, the politicians tell the courts what constitutional law is.


  1. What concessions could be made. Err That's what got the UK into this point in the first place. The UK offered concessions on their budget rebate in relation to the CAP - amongst many other examples. The EU laughed at the UK for their naivety, took some more money from the UK and continued to carry out their CAP subsidies the way they always did.

    What they could quite easily do is the following. Stop being the EU cash cow. As the second largest contributer to the EU budget they could stop all payments until their demands are met. They could also block any discussions on the Veto areas they still have unless their demands are met. Etc Etc. Wouldn't make them too popular, but then Thatcher wasn't too popular but as Miterand has admitted in his Biography, she got the job done.

    "This is a Tory party that has shed almost all association or common thought with continental Christian Democracy". They never had any association with the European Model of Christian Democracy. The Tories have always believed in the power of the individual over the collective, something which is completely alien to the European political process. I would also be careful about the word "Democracy" when you're talking about the EU Constitution/Treaty of Lisbon.

    "I can only describe the Tory party as dangerously constitutionally illiterate". What part of the Tories plan to stop Activist Judges being both the legislature and the judiciary don't you understand. Is the trias politica that has being going since the Ancient Greeks part of your constitutional illiteracy?

  2. (Sorry for the late reply).

    The Rebate is indefensible for the reason that is demands payments off the poorer member states (Poland) to be transferred to the UK as special treatment, and that this is combined with the UK's traditional policy of promoting enlargement, which stretches the EU's resources and brings the policy of supporting poorer members into sharper focus. I'm not saying that there shouldn't be a tough negotiation over it, but the idea that it can be defended on top of demanding even more special treatment is insane. The EU's membership has changed a lot since Thatcher's time, so it can no longer be justified.

    I didn't say that the Conservatives were exactly the same as the continential Christian Democrats, but, before Thatcher, they did share some assumptions about community and society (the Tories and Labour seemed to agree on quite a lot about the welfare state before Thatcher). After all, Churchhill did talk of putting milk into babies. The individualism since Thatcher has been much stronger, and not as mediated by other political considerations. In my opinion, since the Tories seem to have dropped most of the concerns over the private sphere that they may have held even in Thatcher's time (apart from the occasional appeal to the importance of the family), the Conservative seem increasingly to be merely a viehicle for a set of economic ideas rather than a political ideology as such.

    The general attack on activist judges and the judiciary in general betrays a misunderstanding of what the common law is about. What is the common law system that the Tories defend as a great legal system? Judge-made law. Interfering with how judges rule on rights should be a question open to a great deal of scrutiny in any case, but we have to consider the constitutional balance and practicality of the Tories' (ill-defined) proposals.

    At the moment, the courts can interpret legislation into line with the Human Rights Act 1998 (which transposes the European Convention on Human Rights into UK law) if it's possible. If not, then the courts can issue a declaration of incompatiblity (which does nothing). Take away the power of interpretation, and Human Rights law cannot be enforced, unless the Parliament decides to change the law more into line with HR, though this wouldn't provide the individual with a remedy. Rights become a discretionary whim of parliament rather than a legally enforceable individual right.

    So the dilution of rights and the attack upon the judiciary would remove or weaken the only constitutional check against the power of the executive (which controls the legislature).

    To me, that's constitutionally dangerous, and the lack of understanding about what is in the constitution and the various affects of some of the proposed reforms in his speeches, lead me to believe that the Tory party either doesn't know much about the constitution at all, or are willing to tinker with it to their own advantage (or for the advantage of whoever's in power).