Who is afraid of the Working Time Directive? - Part 1

When it comes to renegotiating the UK’s place in the EU and what Cameron wants to be repatriated in terms of powers, there’s very little to go on. So far Cameron’s statements have been about changes for the whole of the EU if possible, but specific opt-outs for the UK if not – though he has no shopping list of powers, and there are only references to "flexibility" to go by. As the UK will probably choose to opt out of the Justice and Home Affairs area of the EU (and "re-opt-in" to a few of the measures in this area), the Working Time Directive seems to be the most prominent piece of legislation that upsets the Tories, so it might be worth taking a closer look at it.

The Working Time Directive is aimed at regulating the rest periods that workers get in order to ensure health and safety at work (Article 1), and covers daily and weekly rest, annual leave and night shift organisation – you can read an overview of the Directive on Wikipedia here.  In the UK the Directive is implemented via the Working Time Regulations (SI 1998/1833). Note that there are separate rules for workers in the transport sector.

The minimum rules the Directive provides include:

- That workers are entitled to a minimum daily rest of 11 hours per 24 hour period (Article 3) – this means that there’s 11 hours where the worker is not at work, including when the worker’s asleep;

- That workers are entitled to a break where the working day is longer than 6 hours (the period is left to collective agreements or national legislation) – Article 4);

- That workers are entitled to a day off for every 7 day period, though there is a derogation to a minimum rest period of 24 hours if there are technical or work organisation conditions that require it (Article 5). The weekly day off is averaged over a fortnight (Article 16(a));

- That workers work no more than an average of 48 hours per week (Article 6) – there is an opt-out, so that employees can sign a contract opting out of the 48 hour limit (Article 22). This is averaged over 4 months or less, depending on the Member State (Article 16(b));

- That workers are entitled to paid annual leave of at least 4 weeks;

- Night workers are treated separately under the Directive, and are entitled to health assessments and 8 hour work days (Articles 8-12);

- Member States can have higher standards if they choose (Article 15), and Article 17 permits derogations for workers in certain sectors.

The UK Working Time Regulations that are based on this Directive provide for the UK that:

- There is a maximum average weekly working time of 48 hours (Regulation 4) – this can be opted out of under an employment contract (Regulation 5). The average is taken by looking at the last 17 weeks of employment;

- Workers will get the 11 hour daily rest and the weekly day off as set out in the Directive (Regulations 10 & 11), with some flexibility over how they’re used;

- Where the daily working time is more than 6 hours, they are entitled to a minimum of a 20 minute break (30 minutes for 15-18 year olds working over 4.5 hours) – Regulation 12;

- Workers are entitled to 28 days paid holiday annually (Regulation 13).

So the UK Regulations stick strictly to the maximum working time permitted by the Directive per week, and employees are able to opt out of the 48 hour average limit (though they should not suffer detriment for not opting out – Regulation 31). On annual leave, the UK Regulations are more generous, providing for 5.6 weeks holiday per year (though obviously you’ve fewer holidays if you haven’t or won’t have worked a full year). For exceptions to the rules and opting out of the 48 hour working week, see the Government’s website here.

Interestingly, if you work more than 6 hours per day, you’re only entitled to a minimum of 20 minutes break under UK law – a bit less than the traditional lunch hour!

As the law currently stands, the UK Regulations mostly stick closely to the Working Time Directive and do little to build on them. Are they really that much of a burden? How much would business really gain from reducing workers' rest breaks (since the headline 48 hour week can be opted out of anyway)? As Narmanda Thiranagama pointed out in her analysis of UKIP's current economic policy (which currently includes scrapping laws such as the WTD), SMEs have put such regulation last on their list of obstacles to growth:

"In 2012, the SME Barometer found that SMEs thought that the biggest obstacle to growth was the economy. Of the 667 directors and owners they interviewsed, 32% believed that the economy was the biggest obstacle, followed by 13% who blamed taxation. "Regulations" languishes at the bottom of the table along with "competition" at 7%."

When it comes to the UK's economic problems and the reality of regulation, it doesn't seem as if there's much that getting rid of this Directive will actually do for the British economy. And are the Tories campaigning with the message that British people don't work long enough hours? Even if they were, there is a debate to be had over longer hours versus productivity within those hours. While I hesitate to simply call a stance ideological - after all political parties are supposed to give us options from ideological viewpoints - it's hard to see where the practical impetus for policy change is coming from here, except that the WTD has become symbolic of EU regulation in the UK.

If you want to have a single market, then there will have to be some minimum social standards: EU Member States all have their own version of the welfare state, and their own idea of a work-life balance. Without some minimum standards, we would be constantly told that we our being out-competed by our neighbours and therefore have to give up the national standards and protections that people have fought for. How long would a single market survive if people were constantly told that it was the reason why they had to give up their working rights? A single market is deeper than free trade and a political project in itself; and if you want countries with welfare states to buy into it, then you will frankly have to expect common minimum social standards unless the political direction of the community changes.

The Tories in their European Conservatives and Reformists can campaign for more liberalisation and deregulation, either alone or with the Euorpean People's Party and others, but if it doesn't, then it shouldn't use renegotiation as a Trojan horse for its own ill-thought out ideological ends.

Tories' draft EU Referendum Bill confirms the poor state of the party

The UKIP victory in the local elections in England at the start of the month continues to make its impact felt on British politics. After former Tory ministers publicly backed withdrawal, and present Tory ministers indicated that they too would vote out if a vote was held today, Cameron has signalled that his party will publish a draft referendum bill today. As it is not coalition policy (the Liberal Democrats oppose such legislation), it will be introduced as a private member's bill, and will not be passed. The Bill is aimed at setting the referendum for 2017 as a way of "copper-fastening" the referendum so it doesn't depend so much on the outcome of the general election.

Ironically for the party whose rebels staged battles over parliamentary sovereignty in the debates over the EU Bill, the Bill would by its nature seek to bind a later parliament (though it would be for the next parliament to decide whether or not to repeal it).

This Bill confirms the poor state of the Conservative party at the moment. It continues to be rattled and drawn into civil war over the EU, even though the polls showing the +9% boost for UKIP also show a drop in support for the position of leaving the EU (though public opinion is still pretty Eurosceptic). The Conservative party is reeling over its position in the polls, but will its Eurosceptic strategy pay off for it?

It's hard to see it winning over those who have left the party to vote UKIP - this is, after all, the Prime Minister who was hailed by the Eurosceptics of his party for his decision to leave the European People's Party, for his veto of the Fiscal Pact negotiations and his speech on Europe just a few months ago. Cameron's arguably been more Eurosceptic in power - with the Liberal Democrats as coalition partners! - than Thatcher was. The splits and the infighting show the weakness of Cameron as a leader, an indiscipline of the party. Eurosceptic shifts are unlikely to win back voters from UKIP, which is now a party of protest rather than just an anti-EU party, but will probably put off centrist voters that tend to be key in winning elections.

In this vein, Henry Hill has an interesting article on how the Conservative party is dealing with its core-vote-or-centrists dilemma.

The Eurosceptic positioning throws up a strange problem: by constantly reinforcing a negative image of the EU in order to prove Eurosceptic credentials, it will be difficult to portray a renegotiation as a victory and sell the result to the British public. I think the renegotiations are unlikely to bring a major repatriation of powers - opting out the the Justice and Home Affairs area, which is practically current government policy, it a big withdrawal already, so it would have to focus on the limited social and environmental aspects of the single market. Since other Member States will not want their welfare states to be undermined by either a general reduction in standards or undercut by individual country opt-outs, only limited renegotiation is possible.

Essentially, the UK will have opted out of so much, that there's little left but the core project, making it harder for the other countries to concede further. Given the economic condition of the European economy and the previous opposition to Treaty change from the left in many countries, passing a reform of the EU that focuses on the sort of deregulation that the Conservative party seems to want would be incredibly difficult. From a position of bashing the EU and having brought back few changes before putting the deal to an In-or-Out vote, Cameron would be in a weak political position.

If Cameron really believes in his tightrope walk between Euroscepticism and EU Membership, then he's set himself a tough task. He cannot talk too specifically about what needs to be changed, either because he does not know what he wants changed, or he does not want to risk loosing on those negotiating points. He is not strong enough to resist the Eurosceptic right of his party, but the more he appeases them, the more Cameron signals both that voting UKIP affects Conservative policy and he weakens his political position when it comes to his "third way" Euroscepticism.

Cameronian Europe is a Europe that is "done to people"

David Cameron's speech on Europe (full text here) didn't reveal much new on his thinking on Europe, but it is an important speech for the stark way in which the political lines are drawn. There may be little that Cameron actually wants or is able to repatriate apart from the Working Time Directive (his speech highlight more areas that powers had been or were being repatriated than areas for future negotiation), but the speech serves as a high-profile espousal of a certain ideology on Europe, along with some of the contradictions and bind-spots it has.

Central to this ideology is a very particular view of the single market. It is the fundamental reason for the EU's existence, and everything else that is defined as non-market is a distraction and a mark of waste. But this stance is also a denial of politics: it refuses the reality that the single market is an expansive concept that covers many areas, and that there can be many types of policy to deal with. Cameron asked:

"...when the competitiveness of the single market is so important, why is there an environment council, a transport council, an education council but not a single market council?"

He's right, there is no single market council. There is, however, an Economic and Financial Affairs Council, a Transport, Telecommunications and Energy Council, an Agriculture and Fisheries Council, and a Competitiveness (internal market, industry, research and space) Council. You may also notice that there's no single British minister for the market, but there is at least one British minister for each of these Councils (and parliamentary committees as well). This is because there are different policies and politics behind each of these areas - and therefore if you're going to have a single market, you're going to have to accept that there should be a room for these politics to play out.

There's also a Council for Employment and Social Affairs, but to hear Cameron and others speak, this is a corruption of the EU's single market purpose. But to strip away the social aspects of the EU would undermine the political basis of the single market - and the single market is just as much a political project as the Euro. Without common minimum social standards, there would be a race to the bottom as it is recommended to people to deregulate to undercut other Member States, or dissatisfaction would build at how other Member States are undercutting their own social protections. This is not an EU through which people can vote for a more left or right-wing single market through national and European elections, but setting up a mechanism for a Europe that just happens to people, with a bigger disconnect than today.


When it comes to the institutions, Cameron is contradictory. He wants a more fluid Europe of 27 speeds, but decries the complexity of the EU institutions: something that would increase to manage this 27 times 27 Europe of different relationships. He says that people can never be properly democratically represented at he European level, but wants to have fewer Commissioners than Member States, undercutting national representation in one of the major institutions. The other Member States are hardly going to accept an EU that reduces their political representation, and nor would it pass parliamentary votes or referendums in other European countries (Commission representation was a sticking point in the Lisbon referendums in Ireland and will likely be a sore point with small Member States).

The vague nature and the reality of negotiations mean that nothing so radical will happen, but the underlying ideology behind the speech and the direction of negotiations mean that no realistic negotiation will ever satisfy it. Politics cannot be drained from the European Union: even if it was reduced to just the single market, these issues are political and need a political and democratic forum to discuss and decide on these issues. The EU cannot be changed into a simplistic enforcement mechanism for the Tories' own market policies across Europe.

The Speech: Car-Crash Politics

David Cameron's speech on Britain's position in the EU, scheduled for the 22nd January, is eagerly awaited. In it, he will try and chart a course around the hardline Eurosceptics that are gaining in strength and give them - and prospective return voters from UKIP - enough to stick with him through the next election while not endangering the coalition, but not placing the UK's membership in question to the extent that it could hurt investor confidence. Cameron can't please anyone with this speech, and everyone knows it: most people will probably be listening to see how he fails.

Last week there was a string of voices against the slow divorce: from the US, Germany and smaller Member States including Ireland, to business leaders and former Conservative ministers (see Jon's round-up here). What makes the speech such car-crash politics is that it's basically aimless posturing. There's nothing Cameron can promise that the rest of the Member States are prepared to give that would be satisfactory to the hardline Eurosceptics, and there's not really much that you can practically put your finger on for repatriation that would not politically undermine the single market (taking away more social and environmental responsibility from the single market would mark the UK out as a free-rider encouraging a race to the bottom within the EU - something politically unacceptable to even the UK's economically liberal allies).

Even if areas where identified, the emotionally charged announcement of plans without background work being done on negotiations is a ridiculous strategy. It seems that the UK strategy is based on the German fear of a Brexit along with the support of some traditional allies, but as the Charlemagne blog on The Economist says:

"The reality is that, if forced to choose between Germany and Britain, Mr Rutte (and almost all of Britain's northern liberal allies) will take Germany's side—as he did over Mr Cameron's pyrrhic veto of the fiscal compact in December 2011 (see my piece from the time).

[...]

 But such tactical gestures [by Germany to accommodate British Euroscepticism] are very different from the notion that Germany, or anybody else, would be willing to create whole new carve-outs for the British from EU rules beyond its existing exemptions (from the euro, the Schengen free-travel area and perhaps parts of justice and police co-operation)."

The inability  to work with the other Member States that do have common economic concerns for repatriation demonstrates he diplomatic ineptness of Cameron's government. It also indicates a failure to consider the reaction of other Member States to the renegotiation - what if Britain's terms were rejected in an Irish/Dutch/French referendum? A belligerent posture doesn't help win treaty change. Pinning it to other EU changes could lead to it being a casualty of a rejection for unrelated reasons as well, so even careful diplomacy could fail to deliver the goods.

The best Cameron can hope for is a short reprieve from Eurosceptic pressure. Without agreement for the opening of negotiations, Cameron would be forced to play a more belligerent hand when Eurozone legislation comes through, placing him in the difficult spot of blocking reforms he has encouraged or called for in some way for unclear goals or to attempt to resist Eurosceptic pressure to obstruct Eurozone reform.

Cameron will need some good airbags...

Labour and the Commons vote on the EU Budget

The UK government was defeated in a non-binding vote in the House of Commons yesterday, with rebel Tories being joined by the opposition Labour Party to call for a real terms cut in the EU Budget (307 votes for, 294 votes against). Though David Cameron signalled support for a budget cut at yesterday's Prime Minister's Questions, it's clear that he doesn't think that anything more than a real terms freeze can be negotiated.

The debate over the EU Budget is depressing. There is no discussion of what the spending priorities should be, so the argument for cuts seems to have crystallised into a moralistic tale of mutual cuts, rather than a rational debate focused on what our priorities and values should be and what our capacity to find them is. As Olaf Camme in The Guardian wrote:

"The size of the EU's budget is not the actual problem and its reform will require more than opportunistic lip service and national point-scoring. At the very least, it will need to involve governments and opposition parties alike entering a serious debate about where Europe can add value and what kind of financial governance can best provide for it. Both dimensions are somewhat found wanting in the British debate, on the right and the left. Yet failure to do this would only underline the saying, often attributed to Henry Kissinger and paraphrased here: the politics (around the EU budget) are vicious precisely because the stakes are so small."

Labour's decision to side with the anti-EU wing of the Tory party to attack David Cameron is crass party politics.  Labour argues that the EU should cut its budget when EU Member States are implementing austerity flies in the face of their rationale for slower cuts and more investment in growth and job creation. Earlier this month it was revealed that an emergency budget is needed to plug the gap in the Globalisation Fund that is directed to helping workers retrain so they can find employment. What does Labour say about the various EU programmes to help boost growth and competitiveness in the poorer regions of the EU? Even if the UK is a net contributor, how often have we heard over the past two years that the lack of growth in the EU has hurt the UK economy? Should supporting recovery in the UK's main export market not be part of its recovery strategy? (Though the health of the UK economy is mostly in the UK government's hands).

Again: the gap for the Globalisation Fund was €10 billion, and the proposed increase in the EU budget is €9 billion. There needs to be a practical debate for how we shape the EU budget to best serve us during the recession and strengthen everyone's position in the single market. And this needs to be done as part of a negotiated solution - remember, every Member State has a veto! Supporting massive cuts in the absence of any reasoned debate beyond a "austerity for all" mantra does not make a credible budget policy.

Cameron, Eurozone budgets and the Single Market

David Cameron signaled his support for the competence review to look at whether the free movement of people should be changed on The Andrew Marr Show on Sunday. You can watch the interview on BBC iPlayer if you're in the UK (the interview starts at 28.45, the European section starts at around 43.30).

The Home Secretary, Theresa May, first issued a call for the free movement of people to be looked at in order to control migration within the EU more. At the last election, the Conservatives promised to cap immigration and they've been criticised for ignoring the free movement of workers within the EU as the major source of immigration. Given the difficulties of the Tories in government, perhaps Cameron wants to repatriate Conservative voters from southern France and Spain!

Changing the free movement of people is a big ask. It's one of the fundamental freedoms of the single market (remember, the single market the Conservatives are supposed to be in favour of?), and the rights of free movement of EU citizens are already pretty much subject to a worker test (i.e. you have to be working or have worked in a Member State before you can claim benefits there). So it's not really a question of EU nationals "pulling their weight", but whether they should be allowed on the job market at all.

This really points to a shallowness in political thinking. The only form of regulation the Conservatives seem to believe in is regulating the movement of people! But the point of the single market is to have a more open and dynamic market where people can enjoy more goods, services, business and working opportunities. Tightening the screws on the movement of people within the EU is of little use if the aim is to protect British workers, because they will still be in a competitive European market, and businesses and capital can still move within the EU. It would be much better to improve the social side of the European Union to help drive social and economic standards up across the Member States to prevent a race to the bottom while allowing us to enjoy the benefits of the single market, including the free movement of people.

This just highlights the fact that the single market is a political project.

On the EU budget, Cameron said that the UK would veto any big increase. But he also indicated that a separate Eurozone budget may be required for fiscal transfers within the Eurozone, and that such a development would be welcome. It's a very interesting point, because a separate budget would mean that there would need to be a division in the European Parliament for it, and divisions within the EU institutions would raise further questions of diluting the UK's influence in the EU generally. And the official reason for the veto last year was that there weren't enough safeguards in the (not yet negotiated) Fiscal Compact to protect the UK's political influence in the single market! Cameron seems to be aiming for a kind of EEA membership within the EU: the perks of the single market plus the political influence without the obligations and financial responsibilities. He'll have a hard time walking that line.

Britain's Bad Negotiating Position

Eurosceptic Conservative backbenchers in the UK want to use the summit tomorrow to negotiate the return of powers from the EU to the UK. It's not clear what powers they want to return to Westminster, but it's likely that the area they're interested in is social policy. This area covers things like the 35 hour week, maternity leave, and holidays. The problem is that Britain isn't in a good negotiating position.

First of all, the official position of the British government is that they want the Eurozone to have some level of fiscal union so that the Euro survives and the British economy is protected by meltdown. It would be a bit strange if the UK government suddenly switched from cheer leading greater integration to threatening to block it so other treaty areas could be opened up. Even if there weren't any other problems with the renegotiation position, this would leave the renegotiation position without credibility. After all, which does Britain need more at the moment: a stable Eurozone or a full treaty renegotiation?

Second, any treaty change will be designed to only affect the Eurozone so the UK's referendum law won't be triggered. So no powers will move from the UK to the EU. But at the same time Britain, as stated by Cameron, wants safeguards that ensure that the Eurozone "Outs" are protected from the growing integration (and potential power) of the "Ins". So Britain (and the other non-Eurozone countries) want something from these negotiations, but they will not be offering anything on the integration side. Whie Germany and other Eurozone countries (like Ireland) support a treaty change for the 27, it has already been signalled that the Eurozone 17 could go on ahead with a treaty outside the EU if necessary. When you're in a position of asking for safeguards but not exchanging anything in return, with the possibility that your negotiating partners can ignore you altogether, it's not a very strong negotiating position.

Third, the UK underestimates how controversial returning social policy will be for the other EU Member States. Social policy seems to be portrayed like it is a small add-on to the internal market, but for other Member States this protects their social policies and welfare states from the opening up of their markets. Why should the special access the internal market provides be given to the UK if they are going to engage in race-to-the-bottom social practices that would harm their welfare states? To put it in terms of the UK's human rights debate: there are rights and responsibilities, and the UK is increasingly seen as wanting all of the rights, but none of the responsibilities.

So for Britain to successfully negotiate a return of social policy powers to London, they need allies (which they would loose from obstructing a treaty change that both Germany and other Outs like Poland want), be in a position to offer something in return (to reassure other Member States that they won't start a race to the bottom), and a credible negotiating position (i.e. not being dependent on the treaty being passed and the goodwill of other Member States to be a part of the negotiations). I can't imagine that the Conservative backbenches aren't already aware of this (I mean, if they aren't I'd like to see their negotiations!), so it could be a way of trying to force David Cameron into backing an In-or-Out referendum.

Cameron might have more luck with negotiating safeguards on financial services, though the 17 can still threaten to go on ahead without Britain. He'll have to hope that whatever safeguards he gets will satisfy the Tories back home.

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.

Lisbon Treaty Ratified: only months of speculation left!

In the course of one day, the Lisbon Treaty has had the challenges against it rejected by the Czech Constitutional Court, and Klaus has finally signed it into law. The Treaty has now been fully ratified in all 27 member states, and the way is clear for it to be brought into force on 1st December.

So ends almost a decade of wrangling, negotiation and debate (of varying degrees of coherence). But fear not, the endless speculation about how the constitutional structure of the EU will evolve isn't over yet - though the prospect of a referendum on the Treaty is off the table for the Conservatives, when they announce their policy tomorrow (some political improv from Cameron, perhaps?), it will almost certainly feature a commitment to tinker further with the EU constitutional system.

The question is: how practical will the Tories be when it comes to their (re)negotiation over competence? When reflecting on the Tories' record on Europe, the capacity for pragmatic engagement isn't particularly confidence-inspiring, especially given the recent news of how much influence hardline Eurosceptics (in particular "Better Off Out" supporter Daniel Hannan) will have on the political thought and direction of the ill-conceived European Conservatives and Reformists Group.

But it's not just that the Conservatives seem stuck in an ideological black hole on Europe; Tory policy making seems to have lost all sense of pragmatism when it comes to constitutional thought - and even all sense of clear thought of how principles should be carried out. This was made clear for me when Cameron spoke on constitutional reform within the UK, which was full of weak sops to parliamentarianism mixed with attacks on judical power and on the concept of entrenched human rights.

Practically speaking, there's not much the Tories can realistically ask for; it will need a lot of political goodwill to get any concessions through, since it will require treaty change, which will be subject to unanimity. Would the UK need to offer something to gain opt outs? The obvious concession would be the Rebate (which is nigh-on indefensible), but it's hard to square this with Eurosceptic thought that the UK is (1) already paying too much, and (2) the appearence that as the UK withdraws from aspects of the EU, it's harder to explain (particularly to an Eurosceptic audience) how paying more is justified. In any case, the concessions the 26 can offer is extremely limited by the nature of the Union (after all, despite the opt-out from the Charter, if legislation is drafted and passed in a way that respects the Charter, the opt-out's practical effect may be limited).

In fact, the rhetoric and practical issues involved mean that it's hard to see how the changes can be either very trival (such as the Economist's passport example) or quite fundamental (to the point of leaving the EU).

And if that doesn't keep you from going into post-Lisbon withdrawal pangs, there'll no doubt be lots of opportunity to analyse how the Lisbon reforms are playing out in practise.

Phew - see? Doesn't sound so bad now, does it?

Does time heal all policy wounds?

David Cameron's European policy seems purely aimed at placating the anti-EU wing of the Conservative party, perhaps the sole aspect of the unappealing Old Tory party that has been openly embraced by Cameron, who has tried to modernise the party and shift it towards the centre. This has given the policy an ad hoc quality, and has allowed it to be driven largely by shadow foreign minister William Hague and Tory MEP Daniel Hannan. I say ad hoc because, though the Tories' European policy can easily be identified as Euroskeptic, it's harder to see the actual goal of the policy. And surely to have a successful policy, you need to know where you want to go?

The policy - insofar as it exists as a conscious policy - is also ad hoc because the principles behind it that are on display, aren't really backed up with action after the symbolic move has been taken. Though the Tories have tried to present the ECR Group in the European Parliament as the "first real opposition" and the separation from the EPP as the opportunity to give people a chance to vote for a sceptic, non-withdrawalist grouping, scant attention has been paid to the ECR apart from its scandals (of which it has quite a few for such a young party). In fact, the Group doesn't even have it's own website - this was brilliantly exposed by Jon Worth's cybersquatting. But then, the aim was never to advance a political ideology, but to bin Europe as an issue in the Tory party altogether. The move to the ECR will therefore result in a loss of influence in the European Parliament, while not advancing any clear political vision. It has also started to damage relations with former EPP sister parties like the CDU - as the BBC reports:

"Joint policy groups have been scrapped and an annual meeting has been cancelled. [...] Mr Altmaier [from the CDU] acknowledged that the working groups had concluded their work, but added that when the time came to form new ones the CDU would be looking to their partners in the EPP. [...] He added that, for the same reason, no Tory MPs had been invited to come to Germany as observers during the recent election campaign, as they usually would have been."

Though pragmatism will mean that the UK won't be completely isolated in the Council under a Tory government, the Tories will have to work and lobby harder to construct issue-by-issue alliances.

The promise of a referendum over the Lisbon Treaty brings the Tory dilemma over European policy to a head (though it naturally won't be resolved given the dangers the issue poses to party unity). Since the UK Parliament has already ratified the Treaty, it would be an incredible reversal of UK foreign policy to push for its retrospective rejection in a referendum - especially if the Treaty has come into force. Tearing up (or attempting to tear up) a painstakingly negotiated compromise is also unlikely to help with mending fences after the EPP split. Perhaps most importantly for Cameron's likely government: it would also open a can of worms for the Tory government - with no clear party vision on what it wants out of Europe, and with the fragile unity the party has on Europe, can a Tory government seriously renegotiate a relationship with the EU that's: (a) acceptable to the whole Conservative party; (b) acceptable to the other member states; and (c) legally and practically possible? And that's without taking into account the vast economic problems the Cameron government would have to face, as well as the questionable populism with which the Conservatives are approaching constitutional reform in general.

So what's Tory policy towards the EU if the Treaty is in force if/when they come to power? Either there's a referendum on the Lisbon Treaty or on EU membership, or there's an attempt at renegotiating back competences, which would require a clear idea of what exactly the Conservatives want, and what they think the EU is for. It would have been better for Cameron if Ireland had voted No and taken the flak for binning the Treaty, so that the Tories could advance their aims, such as they are, without a loss in diplomatic, political capital and party unity. But now Cameron has to make a choice.

At the heart of the Tory dilemma is that it wants to see reform the EU, without exactly knowing what it wants from the EU. Presumably withdrawalism, though vocal in the form of Cash and Hannan, remains a minority opinion in the party since the ECR is more geared towards retaining and advancing the single market aspects of the EU while supporting deregulation and reversing integration. Yet the die-hard anti-EU wing of the party has managed to exert considerable influence on European policy, because the withdrawalists are the only wing of the party that have a clear vision of the UK's relationship with the EU and also enough momentum in the form of the policy concessions they've won from the party leadership to drive their agenda.

Cameron effectively lost control of European policy from day 1 when he promised that the Conservatives would leave the EPP, since he can't push for a more moderate form of scepticism. This creates real problems for him, because the belligerent style of current Tory policy makes progress on even moderate aspects of Tory European policy almost impossible to achieve. The European question won't go away - time won't solve this one. Splitting from the EPP means that Cameron can't hide from the European question by just muddling along as before. Cameron has signalled a change in Tory policy toward Europe, even if substantive change wasn't intended, and with little control over the expectations his party creates, Cameron is likely to be dogged by the issue if he can't deliver.

Progressive reform through Conservative means?

David Cameron yesterday gave a speech on constitutional reform.

I agree with the idea that local councils and devolved assemblies should have more power and autonomy, though Cameron has avoided the whole issue of Parliamentary Sovereignty - if the constitution can be so easily changed to devolve power down, then power can be quickly and easily centralised again by a determined government/parliament. Also disappointing is Cameron's avoidance of the issue of the House of Lords.

It would be too much to hope for Cameron to start a debate on the sorts of policy and the areas of competence that local government should have - and what this means for policy areas such as health, policing and education. If health is controlled more locally (decisions over medicine provision, etc) then how will/should that affect access to health care outside your area (if it should be controlled locally to a degree)? Should police be subject to some local control, and what are the implications for the political neutrality of the police? Hopefully now the issue of competence has been raised, there will be some debate on it.

I like the talk on the power of the whips being reduced for the early stages of the legislative process, but how will this be enforced? If it's just a political convention, political pressure could see a government or an opposition increase the power of the whips again when "politically necessary" for the party. Conventions are weak, and depend on the self-restraint of MPs - perhaps some sort of parliamentary disciplinary procedure for whips who interfere at a point where parliamentary procedure allows MPs a free vote...?

The temptation to break with convention - even the most powerful and respected of conventions - can be very tempting when there's a political advantage in it. Daniel Hannan has recently called on the Queen to dissolve Parliament and call an election if Gordon Brown doesn't:

"If the Prime Minister will not ask the Queen for a dissolution, perhaps she should force his hand. Her constitutional role is very limited, but this strikes me as a case where she might reasonably act. The country unquestionably wants fresh elections. The legitimacy of our democratic system is in the balance. All three party manifestos have been rendered obsolete by events - as much by the financial crisis as by the expenses revelations. The only possible argument against an early poll is based on low political calculation - which it is precisely the Crown's role to transcend. Your ministers have failed you, Ma'am: send for better ones."

If the Queen is supposed to be politically neutral, then she shouldn't intervene - those judgments are political ones, and, really, it's not up to the Queen to judge her ministers. I can't see how the Queen can call an election unilaterally when the polls show that the Tories will win and it wouldn't be see as political. It would be breaking convention and a breach of political neutrality for the Queen to decide what the best political course of action is. Especially since constitutional reform is in the air. The Queen is wise not to start tempting fate by exercising her power in a controversial way (even if you hate Labour) when people are pushing for constitutional reform.

Cameron's speech also has some points I would be seriously critical of:

Cameron's reasons against PR - that in a fixed term parliament it would be bad to have a parliament where the government didn't have a majority and that is weakens voter's ability to decide on the government.

First, the problem of weak governments could be fixed with a minimum requirement of votes to ensure there are coherent parties and if a government can't be formed after, say 3 months or 3 attempts, then there could be an automatic election under a fixed term system - fixed term meaning that parliament or the Queen don't decide on when an election happens, but the stability of a government and the set term of the parliament does.

Second, if parliament is to be strengthened at the expense of the executive, then no government will be able to push through their manifestos and implement them. Wasn't that the point of reforming parliament - so that it would be stronger and more diverse views would be expressed and constituents would be better represented? The more power parliament and individual MPs have, the more consensual politics become, and manifestos are implemented less directly and clearly. If Cameron wants MPs to go through legislation line by line and for parliament to have more legislative input independent of the executive (with perhaps even citizens proposing legislation for parliament to debate), then the importance of government manifestos is weakened as a more consensual approach to legislation is taken. Why then, is a consensual government - or coalitions - a bad thing? If you're going to have a more powerful and consensual parliament, then why not go for PR, where fewer votes are wasted? Does Cameron fear Parliament becoming political? Did he just want MPs to make legislation more efficient and effective and leave the serious politics to the government? Coalition governments can be effective in implementing their respective parties' manifestos - it's more likely that right-wing and left-wing parties will join with like-minded parties to govern, and the changes in policy from manifesto to government need not be so great. And, again, since a consensus needs to be build in Parliament anyway, what's wrong with a consensual government programme? Or to put it another way: why should a party with 1/3 of the vote be able to impose it's manifesto outright?

On Human Rights and the power of the judiciary, I wonder if Cameron actually knows much about this area in the first place.

"...since the advent of the Human Rights Act, judges are increasingly making our laws."

Increasingly? Judges in the common law system always had some law-making power - that's what the common law is: judge-made law. The Human Rights Act involves the interpretation of Acts of Parliament in the light of the Human Rights Act (another act of parliament, though it copies and pastes practically all of the ECHR, it's still an Act of Parliament, and the ECHR only has legal effect because of this). The HRA states that judges can interpret laws into line with the ECHR (which they do, sometimes creatively) or declare laws incompatible if such interpretation is impossible (which has the effect of doing, well, nothing). So judges interpreting law passed by Parliament in light of law passed by Parliament - sounds pretty much what judges are supposed to do, doesn't it?

And the alternative?

Cameron proposes a "British Bill of Rights" to "strengthen our liberties". Ok, so what does that mean, exactly? From the speech, it sounds like he thinks that the HRA has gone too far, so I would guess that he wants a diluted version of the ECHR. Does he propose pulling out of the ECHR? If not, people can still appeal to the court in Strasbourg which, although unbinding (almost like the judges' rulings under the HRA if there's incompatibility), it does have a political effect. So does he want less rights than the ones under HRA? More? What does he want - does he have policies or is he just staking out a populist decision? And again, what about the old question of Parliamentary Sovereignty - where does Cameron stand? If, under a British Bill of Rights, the rights are enshrined and cannot be repealed by implication by Parliament and judges still interpret the law, then judges have the same power (maybe more if declarations of incompatibility start to mean something), but if PS is reasserted, then rights won't be protected as well as they will be vulnerable to the whims of Parliament. So what's it to be, Cameron?

Finally, on Europe, Cameron highlights it's unaccountability and its remoteness. So, where are his policies? What powers should be taken back? What policy areas shouldn't be? On the policy areas that shouldn't be, what policies will the Conservatives pursue in the EP and how should the EP be reformed to make it more in touch with voters? Cameron has failed to articulate any opinions he has on these issues (and you never know, he may have some) despite the looming European election. How do you propose to make the exercise of power in the EU that you're happy to leave there more accountable if you fail in your duty to explain and formulate policies for the voter to choose or reject?

Sadly, the Conservatives are far from alone from this in the UK.