David Cameron's speech may have been put off (for understandable reasons), but Europe was the big topic on Question Time on the BBC last night. It's good to see the pro-European side developing some backbone, even if the arguments could have been put better (it's still strange to see that one of Labour's main issues with the EU is the lack of budget cuts, though).
Norway and Switzerland are set to be the most studied countries in Britain if the debate continues, with both sides raising it for their case - either as the proof of life outside of "Europe", or as evidence of the political enfeeblement of losing Union membership. Given that the in-or-out section of the debate started after a discussion on the free movement of Romanians and Bulgarians, it's strange that Farage was not taken up on the fact that they are more integrated in some respects than the UK (being part of the Schengen zone and also having to accept the free movement of people with Iceland and EU Member States), after he'd spent the last 10 minutes speaking against free movement. The Norwegian and Swiss models are more disputed now than they were before, however.
The biggest challenge for pro-Europeans is changing perceptions of the Single Market - that it's not simply trade, but the movement of people, goods and services, and it goes beyond just free trade. Progressives will have to argue why the internal market is political, and why we should value the political institutions - that do need reform - as a way to act on the environment, etc, in a way we wouldn't be able to otherwise. It will also explain why renegotiation is so difficult: because further British opt-outs would essentially be unravelling the core of the internal market and attacks common social protections.
If Farage - and Eurosceptics in general - are happy to hold up Norway and Switzerland as alternatives (that you can have all the benefits without the political institutions and symbols), then pro-Europeans will have to explain why that position is not just dishonest, but why more democratic EU institutions would be valuable and why they are necessary.
Showing posts with label Eurosceptics. Show all posts
Showing posts with label Eurosceptics. Show all posts
Friday, 18 January 2013
Friday, 27 May 2011
Referendums on the EU
Nosemonkey and Jon Worth have been writing recently about the idea of a UK referendum on its EU membership. Nosemonkey focused on debunking the reasons for a referendum, but there is essentially two reasons put forward against an in/out referendum: it wouldn't settle the membership question, and without a clear "out" plan, such a referendum wouldn't offer any clear choice. I thought I'd add my two eurocents on this, and why I think it doesn't make sense for those supporting EU membership to support an in/out referendum in the UK at the moment.
If there's one thing that can be drawn from the campaigns on the Constitution for Europe and Lisbon Treaty, it's that referendums are very poor ways of deciding the structure of complex, multi-issue matters. Amending Treaties on the EU have always covered very general reforms, mostly on procedure, and it's hard to explain or campaign on such questions. And as Jon noted, being able to fall back on the status quo meant that rejecting Treaty changes was a responsibility-free pass to further your political stance, without the overall answer of the electorate being obvious. It strikes me that if the outcome of a referendum doesn't give you an idea of what people want, then it's not much use.
In the future, changes to the EU Treaties should be on a case-by-case basis, and not general reform Treaties. These would have the advantage of having clear aims that can be debated, and people would have a better understanding of the role the EU plays, and discuss whether it should play a bigger/different/smaller role in that area. This doesn't escape all the problems of uncertain outcomes, but it does greatly reduce them.
In/Out referendums are like general treaty reforms, even if it asks a clear underlying question. This is because the different options to membership - nicely summed up by Jon as the Norwegian, Swiss and US options - are complex results. Nosemonkey has written about Norway and Switerland, and some of the issues with their position. I'll try and write on their relationships with the EU soon (because they have different and complex relationships), but essentially if you're building a single market, it requires common rules, which in turn require common legislation, which in turn requires a common decision-making process.
Switching from EU to EEA membership means joining the internal market but not being part of the institutions that shape it, which is a loss of political power and autonomy.
As Jon points out, the withdrawalist side has to have a case for the alternative which can be debated - without this alternative, the referendum becomes a farce of decision-making. "Do you want the UK to leave the EU?" would translate into "Do you hate the EU?", since it would essentially ask people to state their opinion, rather than actually make a choice.
It would also be unfair to the withdrawalist side. The reason why some supporters of EU membership also support an in/out referendum is that it might be winnable and put the question of membership to rest. Given the non-choice described above, and the general indifference of people to the EU, a yes-leaning "meh" might be the outcome. This wouldn't let the withdrawalist side put their case forward properly, and it wouldn't result in an outcome that would be very meaningful.
Since membership is the status quo, it is essentially for withdrawalist to come up with a case for a non-Member State UK that they want to put to referendum. Until the withdrawalist side come up with an alternative to put to the vote, holding a referendum is pointless, and supporting a referendum without a clear question is merely a more principled-looking way of political point-scoring, whatever side of the debate you're on.
If there's one thing that can be drawn from the campaigns on the Constitution for Europe and Lisbon Treaty, it's that referendums are very poor ways of deciding the structure of complex, multi-issue matters. Amending Treaties on the EU have always covered very general reforms, mostly on procedure, and it's hard to explain or campaign on such questions. And as Jon noted, being able to fall back on the status quo meant that rejecting Treaty changes was a responsibility-free pass to further your political stance, without the overall answer of the electorate being obvious. It strikes me that if the outcome of a referendum doesn't give you an idea of what people want, then it's not much use.
In the future, changes to the EU Treaties should be on a case-by-case basis, and not general reform Treaties. These would have the advantage of having clear aims that can be debated, and people would have a better understanding of the role the EU plays, and discuss whether it should play a bigger/different/smaller role in that area. This doesn't escape all the problems of uncertain outcomes, but it does greatly reduce them.
In/Out referendums are like general treaty reforms, even if it asks a clear underlying question. This is because the different options to membership - nicely summed up by Jon as the Norwegian, Swiss and US options - are complex results. Nosemonkey has written about Norway and Switerland, and some of the issues with their position. I'll try and write on their relationships with the EU soon (because they have different and complex relationships), but essentially if you're building a single market, it requires common rules, which in turn require common legislation, which in turn requires a common decision-making process.
Switching from EU to EEA membership means joining the internal market but not being part of the institutions that shape it, which is a loss of political power and autonomy.
As Jon points out, the withdrawalist side has to have a case for the alternative which can be debated - without this alternative, the referendum becomes a farce of decision-making. "Do you want the UK to leave the EU?" would translate into "Do you hate the EU?", since it would essentially ask people to state their opinion, rather than actually make a choice.
It would also be unfair to the withdrawalist side. The reason why some supporters of EU membership also support an in/out referendum is that it might be winnable and put the question of membership to rest. Given the non-choice described above, and the general indifference of people to the EU, a yes-leaning "meh" might be the outcome. This wouldn't let the withdrawalist side put their case forward properly, and it wouldn't result in an outcome that would be very meaningful.
Since membership is the status quo, it is essentially for withdrawalist to come up with a case for a non-Member State UK that they want to put to referendum. Until the withdrawalist side come up with an alternative to put to the vote, holding a referendum is pointless, and supporting a referendum without a clear question is merely a more principled-looking way of political point-scoring, whatever side of the debate you're on.
Sunday, 4 October 2009
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:
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.
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.
Wednesday, 1 July 2009
The Commission and the Smoking Ban: Should Commission announcements be given a health warning?
You may have heard that "Brussels" would like an EU-wide smoking ban:
Predictably, it's got a strong reaction from some:
I've also seen the words "Big Brother" being bandied about. Of course, this all assumes that the EU (or the Commission) has the power to bring in such a ban. It doesn't.
First of all, all the Commission is proposing is a Recommendation, which would call on member states to make the changes themselves. The recommendation would have to be passed by the Council, and wouldn't be legally binding - article 249 EC* states that "Recommendations and opinions shall have no binding force." Basically, all it would do is say "The EU thinks that..."
Even if the Commission wanted to propose a legally binding smoking ban, it couldn't - the EU doesn't have the competence. Article 152 EC outlines the extremely limited competence of the EU when it comes to health - 152(4)(c) states that the EU can adopt "incentive measures designed to protect and improve human health, excluding any harmonization of the laws and regulations of the Member States." [emphasis mine].
There's also case law on the legality of legislation concerning the tobacco industry (mainly laws on labeling and advertising). Tobacco Advertising (Case C-376/98) and Tobacco Advertising II (Case C-380/03) in particular illustrate the limited extent of EU competence when it comes to health: the ECJ said (as a crude summary) that other legal bases [treaty articles] cannot be used to circumvent the express exclusion of the harmonization of laws in the health area, and that health aspects can be taken into account when shaping legislation as long as health isn't the primary purpose behind the legislation (i.e. legislation affecting the free movement of goods and the ability of magazines with tobacco ads in them to circulate freely in the single market).
So if the EU can't enact such legislation, then why is the Commission making such a big fuss? EUobserver hints at it:
The Commission is jumping on the bandwagon and trying to look as if it's doing something useful and popular - and this gives the impression that the Commission is more powerful than it really is. It will convince Eurosceptics (further) that the Commission is an extremely powerful body that can interfere with practically anything, while it's likely that most pro-Europeans will have doubts about whether the EU should have such competence in this area. And those neutral to the debate? They probably won't notice it much, but it confuses further the question of who has responsibility for what. David Keating has a good article on the Commission's opportunism and how the announcement could affect perceptions of the Commission.
The trouble is that the Commission is inflating expectations of what it can do without having the power to influence the outcome, so that whatever the result, the Commission is likely to annoy people and loose support and make it look big, powerful, interfering and incompetent, rather than making itself appear a pro-active force acting in the citizens' interests. Perhaps the tendency to make such announcements is linked to the top-heavy nature of the Commission?
There should probably be health warnings for Commission statements in the future, such as:
"Warning: this statement contains irrelevant political blather."
"Warning: this statement could lead to legislation."
"Warning: this statement could be a product of boredom and should not be taken seriously."
*Treaty Establishing the European Community
"The commission is suggesting the bloc's 27 member states agree smoking in "enclosed public places, workplaces and public transport" be banned by 2012, while children's exposure to tobacco should be specifically tackled and "efforts to give up tobacco use and pictorial warnings on tobacco packages" should be encouraged."
Predictably, it's got a strong reaction from some:
"The UK Independence Party says it will further harm UK pubs and accused Brussels of crossing the line.
"Nobody pretends that smoking is a good thing, but it is legal," said UKIP MEP Godfrey Bloom.
"These bullies seem to have no truck with freedom, liberty or tolerance. Well in that case we shall have to take it back. And if that means a certain level of civil disobedience, well so be it," Mr Bloom added."
I've also seen the words "Big Brother" being bandied about. Of course, this all assumes that the EU (or the Commission) has the power to bring in such a ban. It doesn't.
First of all, all the Commission is proposing is a Recommendation, which would call on member states to make the changes themselves. The recommendation would have to be passed by the Council, and wouldn't be legally binding - article 249 EC* states that "Recommendations and opinions shall have no binding force." Basically, all it would do is say "The EU thinks that..."
Even if the Commission wanted to propose a legally binding smoking ban, it couldn't - the EU doesn't have the competence. Article 152 EC outlines the extremely limited competence of the EU when it comes to health - 152(4)(c) states that the EU can adopt "incentive measures designed to protect and improve human health, excluding any harmonization of the laws and regulations of the Member States." [emphasis mine].
There's also case law on the legality of legislation concerning the tobacco industry (mainly laws on labeling and advertising). Tobacco Advertising (Case C-376/98) and Tobacco Advertising II (Case C-380/03) in particular illustrate the limited extent of EU competence when it comes to health: the ECJ said (as a crude summary) that other legal bases [treaty articles] cannot be used to circumvent the express exclusion of the harmonization of laws in the health area, and that health aspects can be taken into account when shaping legislation as long as health isn't the primary purpose behind the legislation (i.e. legislation affecting the free movement of goods and the ability of magazines with tobacco ads in them to circulate freely in the single market).
So if the EU can't enact such legislation, then why is the Commission making such a big fuss? EUobserver hints at it:
"...a large majority of Europeans favour smoking ban in the workplace (84%), restaurants (79%), as well as also bars, clubs and pubs (65%)."
The Commission is jumping on the bandwagon and trying to look as if it's doing something useful and popular - and this gives the impression that the Commission is more powerful than it really is. It will convince Eurosceptics (further) that the Commission is an extremely powerful body that can interfere with practically anything, while it's likely that most pro-Europeans will have doubts about whether the EU should have such competence in this area. And those neutral to the debate? They probably won't notice it much, but it confuses further the question of who has responsibility for what. David Keating has a good article on the Commission's opportunism and how the announcement could affect perceptions of the Commission.
The trouble is that the Commission is inflating expectations of what it can do without having the power to influence the outcome, so that whatever the result, the Commission is likely to annoy people and loose support and make it look big, powerful, interfering and incompetent, rather than making itself appear a pro-active force acting in the citizens' interests. Perhaps the tendency to make such announcements is linked to the top-heavy nature of the Commission?
There should probably be health warnings for Commission statements in the future, such as:
"Warning: this statement contains irrelevant political blather."
"Warning: this statement could lead to legislation."
"Warning: this statement could be a product of boredom and should not be taken seriously."
*Treaty Establishing the European Community
Friday, 3 April 2009
The Man who would be King(maker)
Concerns that an indirectly elected President may interfere with the formation of the next Czech government have been circulating in the Czech media, EurActiv reports. No, not Barroso (even if you'd think he could): the Czech President himself, Vaclav Klaus.
I had previously largely dismissed concerns that the fall of Topolánek's government would make that much difference to the Czech Presidency of the European Council (mainly based on the assumption that Topolánek's government would remain in place until Parliament could elect another one), but this article has made me think again. Though it should be noted that the Parliament may have trouble forming a government without any suggestion of interference from Klaus (the CSSD have acted irresponsibly as an opposition, so I wouldn't be surprised). In any case, if a government can't be formed, it certainly leaves a lot of power in Klaus' hands.
Whatever you're view on the EU and Klaus' Eurosceptic stance, the scenario painted is a disturbing one: that a government may be forced on an unwilling Parliament by what should be a ceremonial head of state. Perhaps I'm influenced too much by the role of the head of state in the UK and Ireland...
I had previously largely dismissed concerns that the fall of Topolánek's government would make that much difference to the Czech Presidency of the European Council (mainly based on the assumption that Topolánek's government would remain in place until Parliament could elect another one), but this article has made me think again. Though it should be noted that the Parliament may have trouble forming a government without any suggestion of interference from Klaus (the CSSD have acted irresponsibly as an opposition, so I wouldn't be surprised). In any case, if a government can't be formed, it certainly leaves a lot of power in Klaus' hands.
Whatever you're view on the EU and Klaus' Eurosceptic stance, the scenario painted is a disturbing one: that a government may be forced on an unwilling Parliament by what should be a ceremonial head of state. Perhaps I'm influenced too much by the role of the head of state in the UK and Ireland...
Tuesday, 17 March 2009
UK: What's in a Constitution?
In the UK there is a certain pride in their legal traditions, but there seems to be a confusion about what it all means - the concepts of referenda and parliamentary sovereignty are increasingly uttered in the same breath, seemingly without the speakers' awareness of how much these concepts are incompatible. The UK is famous for its unwritten constitution. Of course it has a constitution, but it's not codified - and a lot of people don't seem to know what it is, exactly. And the bigger question is: is the old constitution, favoured for its flexibility, up to the task of serving today's Britain?
There are many factors to be considered in UK constitutional law, but the most famous one is the doctrine of Parliamentary Sovereignty (PS). PS basically means that parliament is all-powerful, just like god.* According to constitutional theory, if the Westminster Parliament repealed the India Independence Act 1949 tomorrow, then India would revert back to British control (who says constitutional law has to make sense? Or even be practical?).
The UK constitution is just made up of acts of parliament (so it can be changed by a simple majority vote in parliament). Parliament can do whatever it wants (except anything that restricts its ability to do whatever it wants in the future). PS also means that parliamentary Acts are superior to judge-made Common Law, which is quite sensible in a democracy. The problem is that PS rests on its recognition by... judges. Because the doctrine of PS is in itself a judge-made concept.
Confused? Well, it dates back to the Civil War and the Glorious Revolution,** the end result of which is that the King/Queen had the powers of an absolute monarch, provided that the Parliament was the only body that could exercise them. What parliament is, is the King, just divided up among several hundred people. It just happens to be the case that the lower House, the elected one, is now the most powerful part of the Parliament.
So the UK has a constitution which is at odds with the more modern idea of popular sovereignty (the idea that the people are sovereign, and delegate their power upwards), because it is based on the sovereignty of the monarch, which was essentially (though not completely) stolen by parliament. Referenda go, therefore, against constitutional theory in the UK.
The UK has only ever had one referendum: over EEC entry (referendum introduced by Labour).
Now the constitution of the UK is largely a political one: it depends on the political culture for its continued existence since it is built on custom and tradition, and because any parliament could overturn the entire constitution at a stroke with a simple majority (which, under First Past the Post, might only have the support of a third of the electorate). The political culture of the UK has changed a lot over the last century, and it is doubtful that the current constitution is suitable for the modern UK. The issue of Europe in British politics shows the gap in the current political culture from constitutional theory: that the Conservatives, (the traditionalist, constitutional-upholding party) are demanding a referendum suggests that they have lost all respect for the constitution - and yet are not putting forward recommendations for constitutional reform.
There are a number of issues that make constitutional reform more pressing; chief among these is devolution and human rights. Devolution has raised the well known question over English self-rule,*** and human rights has raised questions over how much the parliament should be able to overturn such rights at a whim - or even without meaning to under the doctrine of implied repeal.****
While there have been a few suggestions on these issues (mainly just the Conservatives demanding that only English MPs should be allowed to vote on legislation affecting only England - in my opinion this will just make the system more messy), but no serious attempt at a systemic overhaul. Until this is done, and until popular sovereignty is made part of the UK constitution, Eurosceptic demands for a referendum will ironically attack the British idea of sovereignty more than the EU does (Factortame resolves the tension between PS and the ECJ's doctrine of supremacy of Community law).
Given these issues though, and the lack of political attempts at reform, it has been left to the judiciary to deal with things the best they can. And over the last 40 years there has been a weakening of the judicial deference to parliament, and even (weak) limits being imposed on PS. The famous Factortame case (no.1), which confirmed the supremacy of EU law in the UK (by cleverly saying that EU law was supreme because the UK Parliament's European Communities Act 1972 really said it was, subject to the parliament's sovereign ability to withdraw such rights. ...Yes, I know, but it has to be done in such a way in law) and the Thoburn case (which started a trend of deeming some statutes to be "more constitutional", and therefore not subject to implied repeal) are good examples of this.
In fact, in Jackson v AG, Lord Steyn in obiter***** practically served notice on PS - stating that if parliament threatens access to the courts (etc.), then the courts could just dismiss the power of parliament to do so. The supremacy of the judiciary is a general feature of democracies (supreme courts being able to rule on laws being unconstitutional, etc), and the UK could be moving in that direction, albeit very slowly, and being moved there by the judges themselves.
If nobody discusses the pressing need for constitutional reform in the UK - in fact, the basic need for a codified constitution - then the judges will just have to do the job themselves, just as they did in the past.
This post doesn't have much direction to it, I'd admit. Sorry for that. In a way, I just felt like showing what a mess I think the UK constitution really is, and vent annoyance at some UK eurosceptics' lack of basic knowledge of how their country works, and what its sense of sovereignty is (basically the sovereignty of the rulers based on their control of a territory rather than popular sovereignty). However, I think that the UK needs a constitution in the traditional, write-it-down-somewhere, sense. The current constitution is out of touch with its people (though if you really like it, perhaps you'd say it's the other way around?) - and there needs to be a big effort to confront these challenges.
And if you think all this is messed up, just take a look at land law in Ireland and the UK!
*Depending on the religion. In some cases perhaps even more powerful than god.
**Where the King was fired and Parliament bought a new one.
*** Britain (more correctly the UK) isn't a nation-state. It's a collection of nations in one (historically very centralised) state. A bit like the old Austro-Hungarian Empire.
**** Parliament can't bind successive parliaments, so if two Acts conflict, the newest one is the right one - it "impliedly repeals" the old one. For human rights this could be a bit of a problem.
*****Obiter means that the judge is just saying it - it has no legal effect. But if other judges start agreeing with it, it could find its way into the legal orthodoxy.... [I think this part of Lord Steyn's judgment is at paragraphs 90+ - of the top of my head I'd say it's at 100-110].
[Note: the links for the cases are just to their wikipedia articles, which is definitely not academic. If you actually want to read the cases they should be in the House of Lord's website, though I'd say that they're so famous (ok, famous for court judgments) that you should be able to just google them.]
There are many factors to be considered in UK constitutional law, but the most famous one is the doctrine of Parliamentary Sovereignty (PS). PS basically means that parliament is all-powerful, just like god.* According to constitutional theory, if the Westminster Parliament repealed the India Independence Act 1949 tomorrow, then India would revert back to British control (who says constitutional law has to make sense? Or even be practical?).
The UK constitution is just made up of acts of parliament (so it can be changed by a simple majority vote in parliament). Parliament can do whatever it wants (except anything that restricts its ability to do whatever it wants in the future). PS also means that parliamentary Acts are superior to judge-made Common Law, which is quite sensible in a democracy. The problem is that PS rests on its recognition by... judges. Because the doctrine of PS is in itself a judge-made concept.
Confused? Well, it dates back to the Civil War and the Glorious Revolution,** the end result of which is that the King/Queen had the powers of an absolute monarch, provided that the Parliament was the only body that could exercise them. What parliament is, is the King, just divided up among several hundred people. It just happens to be the case that the lower House, the elected one, is now the most powerful part of the Parliament.
So the UK has a constitution which is at odds with the more modern idea of popular sovereignty (the idea that the people are sovereign, and delegate their power upwards), because it is based on the sovereignty of the monarch, which was essentially (though not completely) stolen by parliament. Referenda go, therefore, against constitutional theory in the UK.
The UK has only ever had one referendum: over EEC entry (referendum introduced by Labour).
Now the constitution of the UK is largely a political one: it depends on the political culture for its continued existence since it is built on custom and tradition, and because any parliament could overturn the entire constitution at a stroke with a simple majority (which, under First Past the Post, might only have the support of a third of the electorate). The political culture of the UK has changed a lot over the last century, and it is doubtful that the current constitution is suitable for the modern UK. The issue of Europe in British politics shows the gap in the current political culture from constitutional theory: that the Conservatives, (the traditionalist, constitutional-upholding party) are demanding a referendum suggests that they have lost all respect for the constitution - and yet are not putting forward recommendations for constitutional reform.
There are a number of issues that make constitutional reform more pressing; chief among these is devolution and human rights. Devolution has raised the well known question over English self-rule,*** and human rights has raised questions over how much the parliament should be able to overturn such rights at a whim - or even without meaning to under the doctrine of implied repeal.****
While there have been a few suggestions on these issues (mainly just the Conservatives demanding that only English MPs should be allowed to vote on legislation affecting only England - in my opinion this will just make the system more messy), but no serious attempt at a systemic overhaul. Until this is done, and until popular sovereignty is made part of the UK constitution, Eurosceptic demands for a referendum will ironically attack the British idea of sovereignty more than the EU does (Factortame resolves the tension between PS and the ECJ's doctrine of supremacy of Community law).
Given these issues though, and the lack of political attempts at reform, it has been left to the judiciary to deal with things the best they can. And over the last 40 years there has been a weakening of the judicial deference to parliament, and even (weak) limits being imposed on PS. The famous Factortame case (no.1), which confirmed the supremacy of EU law in the UK (by cleverly saying that EU law was supreme because the UK Parliament's European Communities Act 1972 really said it was, subject to the parliament's sovereign ability to withdraw such rights. ...Yes, I know, but it has to be done in such a way in law) and the Thoburn case (which started a trend of deeming some statutes to be "more constitutional", and therefore not subject to implied repeal) are good examples of this.
In fact, in Jackson v AG, Lord Steyn in obiter***** practically served notice on PS - stating that if parliament threatens access to the courts (etc.), then the courts could just dismiss the power of parliament to do so. The supremacy of the judiciary is a general feature of democracies (supreme courts being able to rule on laws being unconstitutional, etc), and the UK could be moving in that direction, albeit very slowly, and being moved there by the judges themselves.
If nobody discusses the pressing need for constitutional reform in the UK - in fact, the basic need for a codified constitution - then the judges will just have to do the job themselves, just as they did in the past.
This post doesn't have much direction to it, I'd admit. Sorry for that. In a way, I just felt like showing what a mess I think the UK constitution really is, and vent annoyance at some UK eurosceptics' lack of basic knowledge of how their country works, and what its sense of sovereignty is (basically the sovereignty of the rulers based on their control of a territory rather than popular sovereignty). However, I think that the UK needs a constitution in the traditional, write-it-down-somewhere, sense. The current constitution is out of touch with its people (though if you really like it, perhaps you'd say it's the other way around?) - and there needs to be a big effort to confront these challenges.
And if you think all this is messed up, just take a look at land law in Ireland and the UK!
*Depending on the religion. In some cases perhaps even more powerful than god.
**Where the King was fired and Parliament bought a new one.
*** Britain (more correctly the UK) isn't a nation-state. It's a collection of nations in one (historically very centralised) state. A bit like the old Austro-Hungarian Empire.
**** Parliament can't bind successive parliaments, so if two Acts conflict, the newest one is the right one - it "impliedly repeals" the old one. For human rights this could be a bit of a problem.
*****Obiter means that the judge is just saying it - it has no legal effect. But if other judges start agreeing with it, it could find its way into the legal orthodoxy.... [I think this part of Lord Steyn's judgment is at paragraphs 90+ - of the top of my head I'd say it's at 100-110].
[Note: the links for the cases are just to their wikipedia articles, which is definitely not academic. If you actually want to read the cases they should be in the House of Lord's website, though I'd say that they're so famous (ok, famous for court judgments) that you should be able to just google them.]
Friday, 20 February 2009
Klaus, and levels of decision making
Czech President Klaus addressed the European Parliament yesterday, to tell them that the directly elected body is essentially anti-democratic.
Subsidiarity is a very important concept for the EU, and it probably needs to be considered more, though of course it would be a political minefield, since "subsidiarity" is the EU's term for the distribution of power to where it is as effective and as close to the people as possible.
So subsidiarity poses 2 questions: is the European or national level best for [a certain power], and is the national or the local level best for [a certain power]?
This includes taking power from the national level and devolving it down too:
The EU institutions work mainly with the Internal Market; for the EP this is especially true as it has little to no input in the more sensitive areas of Justice and Home Affairs and the CFSP (Pillars 2 and 3). Now I would say that the best level for legislating for a transnational market is, well, the transnational level, so I would say yes, the decisions the EP take are generally best decided at EU level.
The implication of Klaus' speech is that he would prefer decisions to be taken at a national level. With regard to the internal market this is done to some extent through the ECJ's doctrine of Mutual Recognition (if it's legal to be sold in one member state, then ditto for the other member states, unless there's good reason for this not to be the case). But then Klaus has been positioning himself to avoid signing the Lisbon Treaty into law in the Czech Republic if the Czech Parliament ratifies it by saying that he won't sign it unless the Irish vote Yes.
On the basis that the closest level of decision making for the Czech Republic, is, in fact, Ireland? (....If only more countries would give us a veto on their parliamentary decisions.... In their own interests, of course. In fact, we should elect the Czech President to make sure s/he doesn't get any strange ideas about bowing to the will of the Czech Parliament).
So is the Czech Parliament an illegitimate vehicle for governing the Czech Republic? (Surely the President is even more removed than the parliament from the people, and, since the post can only be filled by one person, even less representative).
Klaus also makes the "EU is not just undemocratic, it's anti-democratic" argument. The composition of the EP cannot make a difference because it cannot form a government and an opposition, he explains.
Then, realising that this is just an argument for giving the EP more power to ensure the accountability of the Commission and (even more shockingly) the member states in the Council, he quickly moves on to the "polity" argument - that giving directly elected politicians more power won't be very democratic either, since people won't identify with them.
Personally, I've never heard of people identifying with national politicians, never mind European ones, but I think that the polity argument takes a very narrow-minded view of human identity: that we can only identify with one thing at a time. (Interestingly as media and economies have grown in reach, so human identity has been pushed up to higher levels while remaining to some extent at each level: family - tribe - city-state - nation state - ?) It also assumes that identity is essential to legitimate decision making, whereas I would argue that having a fair and open arena where ideas are discussed and voted on lends its own legitimacy. The EP needs to engage the people more, no doubt, and the media needs to do its duty in informing the public and holding the EP up to close scrutiny, but these are practical problems that can be addressed - we don't need to give up democracy here as a lost cause. (Jon Worth has a good article on this).
The conclusion would logically seem to be, for Klaus, to pull out of the EU, yet he rules this out as a viable alternative. He says there is no alternative to EU membership. (Grahnlaw disagrees). So does Klaus have a solution? Not really.
The thinking seems to be that powers should be taken back from the EU to national level, but the internal market remain in place. Some powers of the EU aren't essential to the workings of the internal market, but the vast majority are. So how should they be set? They can't be done nationally, and just agreeing to them in an intergovernmental fashion (i.e. just have the Council) is even less democratic than the EU we have now. Surely people should be involved in deciding how we run our common market? But apparently this wouldn't really be democratic?
Unless he doesn't want the internal market, but merely free trade (which is the term he uses), which is much, much less than an internal market - just the end to tariff barriers, with all the non-tariff barriers to trade still in place (no true free movement of goods, people, and services). If so, does that mean that Klaus is actually quite protectionist? I doubt he wants an end to the internal market, which is why he has recognised that there is no alternative to the EU when it comes to the internal market.
So why not come up with some solutions to what he perceived are the EU's problems? Far from providing the debate he claims to want, he merely perpetuates the same old tired arguments.
"Are you really convinced that every time you take a vote, you are deciding something that must be decided here in this hall and not closer to the citizens, that are inside the individual European states?" Mr Klaus asked.
Subsidiarity is a very important concept for the EU, and it probably needs to be considered more, though of course it would be a political minefield, since "subsidiarity" is the EU's term for the distribution of power to where it is as effective and as close to the people as possible.
So subsidiarity poses 2 questions: is the European or national level best for [a certain power], and is the national or the local level best for [a certain power]?
This includes taking power from the national level and devolving it down too:
"[EP President Poettering] did concede one point to the Czech president, saying that decisions should be indeed taken closer to the citizen, but that it was also the responsibility of national government to devolve powers to regional and local authorities."
The EU institutions work mainly with the Internal Market; for the EP this is especially true as it has little to no input in the more sensitive areas of Justice and Home Affairs and the CFSP (Pillars 2 and 3). Now I would say that the best level for legislating for a transnational market is, well, the transnational level, so I would say yes, the decisions the EP take are generally best decided at EU level.
The implication of Klaus' speech is that he would prefer decisions to be taken at a national level. With regard to the internal market this is done to some extent through the ECJ's doctrine of Mutual Recognition (if it's legal to be sold in one member state, then ditto for the other member states, unless there's good reason for this not to be the case). But then Klaus has been positioning himself to avoid signing the Lisbon Treaty into law in the Czech Republic if the Czech Parliament ratifies it by saying that he won't sign it unless the Irish vote Yes.
On the basis that the closest level of decision making for the Czech Republic, is, in fact, Ireland? (....If only more countries would give us a veto on their parliamentary decisions.... In their own interests, of course. In fact, we should elect the Czech President to make sure s/he doesn't get any strange ideas about bowing to the will of the Czech Parliament).
So is the Czech Parliament an illegitimate vehicle for governing the Czech Republic? (Surely the President is even more removed than the parliament from the people, and, since the post can only be filled by one person, even less representative).
Klaus also makes the "EU is not just undemocratic, it's anti-democratic" argument. The composition of the EP cannot make a difference because it cannot form a government and an opposition, he explains.
Then, realising that this is just an argument for giving the EP more power to ensure the accountability of the Commission and (even more shockingly) the member states in the Council, he quickly moves on to the "polity" argument - that giving directly elected politicians more power won't be very democratic either, since people won't identify with them.
Personally, I've never heard of people identifying with national politicians, never mind European ones, but I think that the polity argument takes a very narrow-minded view of human identity: that we can only identify with one thing at a time. (Interestingly as media and economies have grown in reach, so human identity has been pushed up to higher levels while remaining to some extent at each level: family - tribe - city-state - nation state - ?) It also assumes that identity is essential to legitimate decision making, whereas I would argue that having a fair and open arena where ideas are discussed and voted on lends its own legitimacy. The EP needs to engage the people more, no doubt, and the media needs to do its duty in informing the public and holding the EP up to close scrutiny, but these are practical problems that can be addressed - we don't need to give up democracy here as a lost cause. (Jon Worth has a good article on this).
The conclusion would logically seem to be, for Klaus, to pull out of the EU, yet he rules this out as a viable alternative. He says there is no alternative to EU membership. (Grahnlaw disagrees). So does Klaus have a solution? Not really.
The thinking seems to be that powers should be taken back from the EU to national level, but the internal market remain in place. Some powers of the EU aren't essential to the workings of the internal market, but the vast majority are. So how should they be set? They can't be done nationally, and just agreeing to them in an intergovernmental fashion (i.e. just have the Council) is even less democratic than the EU we have now. Surely people should be involved in deciding how we run our common market? But apparently this wouldn't really be democratic?
Unless he doesn't want the internal market, but merely free trade (which is the term he uses), which is much, much less than an internal market - just the end to tariff barriers, with all the non-tariff barriers to trade still in place (no true free movement of goods, people, and services). If so, does that mean that Klaus is actually quite protectionist? I doubt he wants an end to the internal market, which is why he has recognised that there is no alternative to the EU when it comes to the internal market.
So why not come up with some solutions to what he perceived are the EU's problems? Far from providing the debate he claims to want, he merely perpetuates the same old tired arguments.
Friday, 30 January 2009
Czechs (and others) and the Lisbon Treaty
The Czech parliament will not vote on the Treaty until the 15th of February. This will give the parliamentary committee time to make sure they've scrutinized it enough (is the official reason, so hopefully they have definitely read it through, unlike some Irish politicans). The EUobserver reports that the majority of Czechs are in favour of the parliament ratifying the Treaty, although this seems to be based mainly on concerns about prestige, and levels of knowledge about the Treaty itself are still very low.
In other news, Daniel Hannan has blogged that the Commission plans to extend its term against the rules. Now, I seem to remember that the extension of the term was agreed back in the December European Council, so that the next Commission would be chosen in a manner consistent with whichever way the next Irish referendum goes. Since the retension of a Commissioner is one of (if not the) key concerns of the Irish, and since under the Treaty of Nice the next Commission must have fewer members than the EU has member states, the extension is key to respecting the Irish vote - something Hannan and others claim to do and call for.
This could be an honest mistake (though as an MEP, you'd think that Hannan should be aware of these things...); a stranger position to me is that of the Polish President. Lech Kaczynski says that he will not sign the Lisbon Treaty unless the Irish vote yes in the next referendum. Ireland is rightfully proud and defensive of its constitution, and would be outraged if our president refused to accept the will of parliament because of a vote in another country.
We need to decide on rules of engagement on other European politicians when is comes to debating European issues. When is it acceptable and to what degree is it acceptable for other European politicians to become involved in national debates on European issues?
In other news, Daniel Hannan has blogged that the Commission plans to extend its term against the rules. Now, I seem to remember that the extension of the term was agreed back in the December European Council, so that the next Commission would be chosen in a manner consistent with whichever way the next Irish referendum goes. Since the retension of a Commissioner is one of (if not the) key concerns of the Irish, and since under the Treaty of Nice the next Commission must have fewer members than the EU has member states, the extension is key to respecting the Irish vote - something Hannan and others claim to do and call for.
This could be an honest mistake (though as an MEP, you'd think that Hannan should be aware of these things...); a stranger position to me is that of the Polish President. Lech Kaczynski says that he will not sign the Lisbon Treaty unless the Irish vote yes in the next referendum. Ireland is rightfully proud and defensive of its constitution, and would be outraged if our president refused to accept the will of parliament because of a vote in another country.
We need to decide on rules of engagement on other European politicians when is comes to debating European issues. When is it acceptable and to what degree is it acceptable for other European politicians to become involved in national debates on European issues?
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