Brexit: turning the screws


As the Brexit debate in the UK internalises (or increasingly so), with the legacy media transfixed by Tory plots and other distractions, the EU is quietly turning the screws, seeking to lock the UK into the most abject state of subordination during the transition period that it is possible to imagine.

The bones of the latest developments are set out in a series of slides produced by the European Commission as part of the series of internal EU27 preparatory discussions on the framework for the future relationship, dealing with "International Agreements".

The screws are then turned still further in a document seen by Politico and now published.

This "position paper" translates into legal terms the principles laid down in the European Council Guidelines of 29 April and 15 December 2017 and in the supplementary negotiating directives annexed the Council Decision of 29 January 2018. In so doing, it sets out the text intended to form part of the legally binding withdrawal agreement.

Given that this gives legal form to our "vassal state" status, it does not make for happy reading. For instance, within the five-page document, the EU invokes the principle of "sincere cooperation" as a means of prohibiting the UK from taking "any action or initiative … likely to be prejudicial" to the EU's interests in any international body or forum during the transition period.

This could bar the UK from taking an independent stance at the UN, the WTO, or in the G7 or G20, if it ran counter to the EU's position. But that might also take in the Basel Committee and bodies such as the OECD and the all-important Financial Stability Board (FSB).

As expected, the text bans for the duration of the transition period, the UK enacting trade - and other international agreements in the areas of exclusive competence of the Union – that it concludes, unless specifically authorised to do so by the Union.

To enable it to supervise and enforce the transition provisions, the EU is also demanding that all the institutions, bodies, offices and agencies of the Union shall be recognised under UK law and as "natural and legal persons residing or established in the United Kingdom. In particular, the text says, the Court of Justice of the European Union shall have jurisdiction as provided for in the Treaties.

The text also includes a tighter definition of the UK's minimal influence over EU decision-making, while a new provision is proposed, allowing the EU to suspend certain benefits arising from the UK's participation in the Single Market when there is not enough time to bring the matter to the ECJ.

This will prevent the UK from taking advantage of its imminent exit, breaching market rules and then using judicial delaying tactics to avoid any sanction. The Commission can step in and take direct action without waiting for the ECJ to act.

Confirming that already proposed in the latest set of negotiating directives, the text requires the EU to consult the UK - but not necessarily act on its input - only in regard to setting new fishing quotas. On other issues, such as sanctions policy, and issues directly affecting the UK, the EU may consult but would be under no obligation to do so.

As far as the slides in "International Agreements" go, the really interesting provision here is the assertion that, after Brexit, the UK will no longer be covered by "EU only" agreements: agreements concluded by the EU (and/or Euratom); or by the Member States on its behalf.

This is straightforward enough, but it also refers to "Bilateral mixed agreements", those concluded on the one hand by the Union and its Member States, and on the other hand by the third country partner.

These are taken to include association agreements, cooperation and partnership agreements, aviation agreements and, intriguingly, the European Economic Area (EEA) Agreement.

While the EU concedes that the UK will remain party to multilateral agreements to which the EU is also a party, such as the WTO agreements and the Paris climate accord, its failure to recognise the EEA Agreement as a multilateral agreement means that it believes it can take the back door approach to easing the UK out of the EEA, even if the UK does not invoke Article 127, giving notice to quit.

The exact definition and constitution of "bilateral mixed agreements" comprises some of the most arcane elements of EU treaty law, verging on the theological. Highly contentious views are very far from being settled international law and it remains to be seen whether the EU's treatment of the EEA Agreement can prevail – and especially if the UK switched from EU to Efta membership.

However, if the UK and the EU are in accord that Brexit means that the UK has voided the EEA Agreement, it is very hard to see who will have the legal status to object. We could drop out of the EEA by default, simply because all the parties agreed and there was no one capable of challenging our departure.

Since Mrs May's government looks set to follow down the path of the "vassal state" transition, this could very well be the outcome of the Efta/EEA option.

Current parliamentary moves are simply too little too late and, in any case, promotion of this option for an "end state" Brexit is very far from idea. Yet no one outside of Flexcit is promoting the idea of the option as the launch pad to something better.

The current documents, however, make plain the parlous position of the UK and, while the transition period is time-limited, the expectation that we will move from there to a free trade agreement does not remove the "cliff edge" of catastrophic loss of market access. Pressure to extend the period is certain and may be hard to resist.

Before that, though, there is the Mogg factor. It seems distinctly possible that he and his ERG colleagues will be able to muster enough leverage to block agreement of any withdrawal agreement which includes such draconian provisions which go so far as to state that, "For the purposes of the treaties, during the transition period, the parliament of the United Kingdom shall not be considered to be a national parliament" and "during the transition period, the Bank of England shall not be considered to be a national central bank".

Rees-Mogg has already said that the legal draft is "not something that we (the ERG) can accept". He particularly objects to the Commission power to, as he says, "punish us" for infractions of market rules without the UK being able to plead its case in the ECJ.

This rather puts him rather on the spot as the man is already on record as rejecting the idea of any ECJ involvement. Now he must insist – at the very least – on a compromise agreement, or its complete rejection. Failing that, he must limb down and take the humiliation that goes with it. It would almost be worth accepting the transitional agreement just for that.

As for Downing Street, a government spokesperson is taking a fairly laid back approach. "This is a draft document produced by the EU that simply reflects their stated directives", the person says. "The Secretary of State (David Davis) set out the UK's position in his speech in Teesside last month. Together these provide a solid foundation for the negotiations on the implementation period, which have begun this week with the aim of reaching agreement by March European Council".

Nevertheless, officials in Brussels are making it clear that they have little appetite for prolonged negotiations. And the UK has virtually no leverage if it wants a transition as opposed to the "sudden death" of a drop over the edge of the cliff.

This week may take us that bit closer. From Tuesday, for four days, negotiations have started anew. They are being fronted by Sabine Weyand, the EU's deputy chief negotiator, and the Cabinet Office adviser, Olly Robbins. On these, we might just see some progress. Miracles have been known to happen.

Richard North 07/02/2018 link

Brexit: grandstanding


Since 1972, Parliament has been sitting on its hands, allowing successive EU treaties to be signed. It has then been content to ratify these treaties, holding unto itself only the power to make the decisions as to whether more and more of its powers should be outsourced to Brussels.

Then, when it finally came to whether we should leave the EU, the people made the decision, in the face of a parliament that, on balance, supported continued membership. And now that the people have decided and the government is in the process of implementing their decision, some MPs have rediscovered "democracy" and have demanded a vote on the withdrawal settlement negotiated under Article 50.

Having awarded themselves this vote, if Dominic Grieve's amendment survives (which it probably won't), they could severely damage the withdrawal process. Once the Article 50 settlement has been concluded, there is no provision for it to be renegotiated if any of the parties reject it, leaving the possibility of the UK crashing out of the EU without a deal.

In theory, MPs could rescue us from a bad deal, but since its effects could not begin to match the consequences of no deal,  MPs have awarded themselves the power to turn a crisis into a potential disaster - all in the name of democracy. What happens, for instance, if the European Council and Parliament approve the deal and Westminster says "no"?

The fact that we are confronted with this situation is, of course, highly unsatisfactory, but one should note that the essentially flawed Article 50 came with the Lisbon Treaty. This was approved by parliament – after a referendum had been rejected. That makes it parliament's mess (in part) – they need to put up with it, just like the rest of us have to.

Much of the angst is, in any event, special pleading. The wording of the Article 50 settlement is only a very small part of the overall withdrawal process, with little lasting effect (barring, of course, Northern Ireland, which could as yet scupper the deal).

But if I am right in my assessment, then the transitional arrangements will need a new treaty, as will any trade deal agreed with the EU. And in both instances, parliament will get a vote, if it can be bothered. The UK ratification process makes provision for a vote if parliament demands it.

Given the quality of the debates we see in the House, and the average MP's understanding of EU and trade issues, any debate leading to such votes would hardly we worth the time. In any case, since most MPs vote on party lines, the outcomes would mostly be pre-ordained. But the point is that parliament does have the power to make a difference. Mostly it doesn't bother. It just makes noise – rather a lot of it.

As much as anything then, yesterday's vote represented nothing very much, other than an opportunity for MPs to indulge in yet more grandstanding – which is about the only thing they're any good for. It also reflected the inwards-looking nature of the institution and the chronic parochialism which elevates local interests above far more important events happening elsewhere.

One of those events took place in in Strasbourg, where Michel Barnier spoke to the plenary session of the European Parliament, reporting "on the extraordinary negotiation with the United Kingdom and on the first result we reached last Friday". From that one speech, we glean more information of use to us than we get from a bucket-full of Westminster effluvia.

Central to Barnier's speech was a reminder of his core philosophy. In this negotiation, he said,
… our state of mind has never been to make mutual concessions. This is not about making concessions on citizens' rights. This is not about making concessions on the peace process or stability on the island of Ireland. Nor is it about making concessions on the thousands of investment projects which are financed by EU policy and the EU budget.
There's nothing new here, but it does serve to illustrate once again how wrong HMG's approach to the negotiations has been, treating them as bargaining sessions as if in a souk. This was not the way to do business.

What was especially interesting, though, was Barnier's decision in his speech to focus principally on citizens' rights. The provisions of the Joint Report were spelt out, with the EU's chief negotiators pointing out that the rights of "4.5 million European citizens" living in the UK would be protected by their inclusion in the Withdrawal Agreement.

Spelt out then was the singular fact that the Agreement will take precedence over national law and its guarantees "will have direct effect, for the duration of the lifetime of the people concerned".

"There will be no ambiguity in the interpretation of the rights on either side of the Channel", Barnier added. "Current ECJ case law will be part of the Withdrawal Agreement, and future case law will apply. British courts will have to take 'due regard' of case law for the lifetimes of the citizens concerned".

Furthermore, the British authorities will create an independent authority to which European citizens can have recourse in the United Kingdom, in the same way as British citizens in the EU can have recourse to the European Commission.

But it is a measure of the lack of trust that the "colleagues" have in the UK government that they are insisting that the details of this independent authority must be included in the Withdrawal Agreement. So indeed will the administrative procedures that the UK will apply to allow EU citizens to stay in the UK. Nothing is being left to chance – or the good will of the UK government.

Barnier, however, acknowledges that neither on this issue nor on the other subjects of the orderly withdrawal "are we there yet". He thus points out that there are many details still to be resolved,some of which have yet to emerge into the public domain, such as Euratom.

We will continue the negotiations on the subjects that need more clarification, he says, deepening and negotiation: the governance of the future agreement, other subjects such as geographical indications, the issue of data.

As to Ireland, this "will form part of its own specific strand in the negotiations". "Each assuming their responsibility, we need to find specific solutions for the unique situation of the island of Ireland", he adds. The UK is not going to be allowed to roll this in with the trade negotiations. The issue will have to be settled, or we go no further.

Hinting at battles to come, Barnier talked of moving forward on defining a transition period. It will be "short and supervised during which we will maintain the full regulatory and supervisory architecture – and obviously the role of the Court of Justice – as well as European policies".

Meanwhile, on the future relationship, that is a matter for "our internal preparation". It is not open, at this stage, for the UK to take part in the discussions.

But certain things had already been decided. "I can already tell you, and I say so clearly and calmly", Barnier declared, "that there are non-negotiable points on the integrity of Single Market, the four indivisible freedoms which are the foundation of the Single Market, and the autonomy of the Union's decision-making, which the UK has decided to leave".

And never missing an opportunity to remind us of our coming status, he added: "The United Kingdom will become a third country on 29 March 2019", then asserting, "We think that a close, future partnership remains our common horizon".

To conclude, Barnier told the European Parliament, "We know where we are today; we know where we are going". Would that a UK government could be so confident. But with Dominic Grieve snapping at its heels, the very last thing our government knows is the nature of its destination – even less does it know how to get there.

Richard North 14/12/2017 link

Brexit: impact assessments


Given the spectacular failure of David Davis to deliver credible (or any) impact assessments, I've been asked to produce a list of sites which offer information on the impacts of Brexit. 

This comes after the publication of a House of Lords Report on the impact of a hard or "no deal" Brexit, trailed by the Guardian on the day of publication.

Without further ado, therefore, I have compiled with the assistance of readers, a list of links to relevant sites, which I append below. I will ask Pete to put up a link on the menu toolbar (above) and then add to and refine the list, to provide an ongoing resource.

If the pic looks familiar, it's one I used here, dealing with customs and related issues. Anyway, here is the list (most, but not all from EU Ref):

1. Aerospace industry and here
2. Airlines and here;
3. Airlines: Third Country Operators;
4. Air Traffic Management;
5. Animal Exports;
6. Automotive industry (vehicle certification) and here;
7. Bloodstock Sports (Horseracing);
8. British Standards Institute (CENELEC etc);
9. CETA and EU exports;
10. Chemicals (REACH) and here;
11. Cosmetics;
12. Customs systems;
13. Damage Assessment (Adding it up);
14. Digital Market;
15. Driving Licenses, etc ;
16. Euratom (Pete North);
17. Financial contributions (Monograph 3);
18. Financial Services (Monograph 14) and Select Committee Report;
19. Fishing;
20. Food exports;
21. Formula 1 (Racing cars) ;
22. Geographical Indications;
23. Hazardous Area Equipment;
24. Medical Isotopes;
25. Maritime Surveillance;
26. Meat Industry;
27. Passenger Lifts;
28. Passport Union;
29. Pharmaceuticals Industries (Medicines);
30. Pharmaceutical Ingredients;
31. Port Operations and here;
32. Third Country Status;
33. Timber and related products;
34. Trade cooperation;

and also …

35. European Parliament Impact Studies.

Any suggestions for further entries would be appreciated.

Richard North 08/12/2017 link

Brexit: the fantasy of the "no deal"


It is rather appropriate that David Davis, the serial fantasist, should yesterday be standing up in the House of Commons to defend another fantasy, the so-called "no deal" scenario.

The occasion was a statement to update the House on the fifth round of Brexit negotiations, when he also reviewed the progress of the five negotiation rounds to date. But it was Keir Starmer, Davis's shadow, who first raised the issue, declaring that we needed "to drop the nonsense about no deal". 

Starmer then added: "Only fantasists and fanatics talk up no deal. No deal is not good for the UK, is not good for the EU and is not what the Secretary of State wants, but he must now realise that the slow progress of these talks raises the risk of no deal".

Davis, typically, denied that he was "talking up no deal". "I cannot think of a time, a day, a moment when I have talked up no deal", he said. "We are in the middle of a negotiation, and we want to negotiate in good order and with good faith on both sides, but if we do not prepare for all outcomes, we will leave ourselves exposed to an impossible negotiation".

Then it was the turn of Peter Grant, the SNP for Glenrothes. "The Secretary of State assures us that he has never talked up no deal", he asserted, "but he has not talked it down, either". Thus, he said: "Other influential voices in his party talk up no deal all the time. The Prime Minister still has not withdrawn her claim that no deal is better than a bad deal. Rather than just not talking up no deal, will the Secretary of State absolutely rule out no deal today as the worst of all possible deals?"

When Neil Coyle, the "The hon. Member for Bermondsey and Old Southwark, from a sedentary position", charged that Davis was "talking up no deal", the Secretary of State reacted sharply. "No, I am not", he said. "I am dealing with scaremongering and I am knocking down scaremongering, so I think the answer there is no".

But it was then down to Anna Soubry to put the boot in. Did he (Davis) "agree that it is not just within this House where there is no majority for no deal, but that by their vote on 8 June the British people did not give this Government any mandate for no deal, because not only would it be bad for everybody in England, Wales and Scotland, but it would be particularly bad for our friends in Northern Ireland?"

And then it came. Davis retorted that the election "gave us a bigger mandate than it gave the Opposition", adding: "we are seeking to get a deal, as that is by far and away the best option. The maintenance of the option of no deal is both for negotiating reasons and for sensible security; any Government doing their job properly will do that".

How revealing that was. The "no deal" scenario is not real. It is being kept in reserve for "sensible security" but primarily for ""negotiating reasons". But, if it is a bluff – and that's what Davis is admitting it is – does he not realise that the EU negotiators will be just as aware of that as he is?

The issue, of course, is that no one who has done any serious analysis can be under any illusions that the "no deal" scenario is a non-starter. We are not the only ones to have suggested that, as a ploy, it is akin to Davis threatening to shoot himself if we don't get our own way.

Yet, even if Davis seems to be breaking out of his fantasy cycle, this new-found reality is apparently not shared by his ministerial colleague, Liam Fox. He recently told the BBC that there was no reason to fear the impact on the economy of no deal being agreed. It "would not be the Armageddon that people project", he said.

This is matched by the insouciance of John Redwood who insists that the UK will be "fine" if Britain walks away from Brussels without a deal.

Writing recently in The Sun, though, we see the shape of his pitch, extolling the advantages of Brexit and the options afforded by leaving, but never addressing the "day one" issues of how we continue trading with the EU after we have left.

We see the same myopia with the likes of the IEA, which adopts the same narrowly focused optimism without dwelling on the details.

Representing the IEA, we see Julian Jessop, chief economist and head of the IEA's Brexit Unit tell us that a "no deal" scenario does not have to be the "catastrophe" that many fear. "There would be", he writes, "some new barriers to trade with the EU, but these should be manageable". 

Leaving the Single Market and the Customs Union would, Jessop adds, "simply put the UK in the same position as other members of the World Trade Organisation (WTO) with whom the EU does not have a bespoke deal, such as the US and China".

One could scarcely do justice to the claim that the "new barriers" should be "manageable" but, like Redwood, Jessop offers no detail. Nor indeed does Roger Bootle, another "no deal" fantasist. These people never do.

One of the sustaining myths is that we already trade under WTO rules with the likes of China and the US (something also asserted by Redwood), which allows the Jessops of this world to ignore the reality that most nations have multiple trade-relevant agreement with the EU, even if they are not specifically free trade agreements.

Also underwriting the case is another lie, on which we remarked upon in May of this year. This was when we noted Lee Rotherham argued that within the context of a "no deal", we could still make "separate agreements" to "remove specific, thematic or sectoral barriers, just as they are regularly done in EU bilaterals".

This has emerged into the full-blown concept of the "no-deal deal", where we somehow walk away from the Article 50 talks and yet still expect to conclude agreements with the EU on a host of other issues.

This is precisely the line taken by Jessop who concedes that "There are many other agreements that would also need to be renegotiated, including access to EU aviation markets, mutual recognition of pharmaceuticals, and cooperation with EU-led organisations such as Euratom".

These arrangements, he then argues, "do not depend on accepting the obligations of EU membership" and then – effectively contradicting himself about other countries trading under WTO rule, states that participants "already include plenty of countries which are not even in Europe, let alone the EU".

Thus, "no deal" on the Single Market or Customs Union, Jessop asserts, "would not therefore prevent the UK and the EU from continuing these (mutually beneficial) arrangements on essentially the same terms as today, based on agreements made separately from the Article 50 process".

So there you have it – the fundamental dishonesty writ large, where "no deal" is not actually no deal, and working under WTO rules is not working under WTO rules, but on a regime of additional agreements.

The idea of a "no deal" scenario, therefore, remains a fantasy, but it is also one which even its advocates cannot sustain without inventing a supplementary reality. In this world, having walked away from the EU, we return to Brussels whence the "colleagues" willingly sign up to a whole raft of agreements which previously they had refused to discuss.

Back in the real world, though, the negotiations are constrained by Article 50 and the European Council guidelines. Yesterday, we cautioned that the next indicator that we would get as to where we were going there would come with the General Affairs Council, which met yesterday in Luxembourg. And right on cue, we got the cue that there had been "insufficient progress" for the talks to proceed to phase two.

Thus, we have a situation where the advocates of the "no deal" scenario are refusing to engage with reality, arguing for something that they don't actually want, in the hope of getting something better which they can't actually get.

In taking this line, these people risk getting only that which they didn't want, which will turn out to be precisely the disaster which they say it won't be, because it isn't actually what they made it out to be and is what they say it isn't.

Locked into their fantasy world, these people cannot see the absurdity of their own positions, or the danger to which they are exposing us all. And, if we allow them free rein, they will bring us all down.

Richard North 18/10/2017 link

Brexit: losing the big picture


You don't have to be very perceptive to realise that the Brexit negotiations are not going too well for the UK. In the wake of the previous week's session we've been watching the signs and they're there for anyone who wants to see – unless you' re Stephen Booth of Open Europe, in which case it's the EU that's in a mess.

He argues that the EU-27 lacks any clear idea of what wants from the negotiations, or what it wants to have achieved at the end of the process.

The best clue as to why Booth is living in the warm glow of an ultra fantasy comes from an article in PR Week which has the CEO of a major PR firm telling clients not to waste effort lobbying as the government wasn't listening.

This has been such a continuous refrain, from so many different sources, that we can't even begin to doubt the veracity of this particular observation. But if any confirmation was needed, it comes from Steve Bullock, former member of UKREP in Brussels, having also worked for the European Commission and the Department for International Development's Europe Department.

His first observation is that, if nothing else, the most recent contact session has shown that the level of complexity involved in Brexit is unprecedented – something we've been saying forever. But, says Bullock, Ministers seem to have inserted their heads firmly into the sand, hoping tricky problems will just go away.

Like any former FCO civil servant, though, he doesn't do detail. But he knows enough to support his claims, then moving on to say that the "incredible level of technical complexity" appears to have been ignored by the Prime Minister and government ministers. We can look forward to further weeks of startling discoveries of self-defeating implications of the Government's own Brexit strategy, he says.

As a result, he says, the chances of getting any deal, let alone a good deal, in the limited time available look minimal. His view is that Brexit would have been a terrible idea even if done as well as possible – something with which we can't agree – but we wouldn't disagree with his observation that, for the Government to blithely march the country towards consequences that they don't even themselves understand is "an appalling dereliction of duty".

But that is only the half of it. We are seeing from other reports that the UK team simply isn't delivering the goods.

An EU source complains that the UK is not providing enough position papers, something that is evident from the lack of material posted on the government's website and the lack of substance in ministerial speeches.

Unsurprisingly, therefore, we see media reports Michel Barnier telling member state representatives that the negotiations are faltering and the UK government's hopes autumn talks on trade are increasingly likely to be dashed. And this, Barnier says, is because the government had been unable to provide sufficient clarity on its positions during the last week's contact sessions.

Nor does this come out of the blue. Just a few days back we had Fabian Zuleeg, Chief Executive and Chief Economist at the European Policy Centre (EPC) offer his own observations.

What he says of the discussions in the UK is that it lacks a real appreciation of the view from the other side of the Channel. The assumption that the EU27 are willing to accept any deal to avoid Brexit is misguided. Not only are there red lines that they will not cross, but the clock is ticking as well. The time left to strike a deal is limited.

Cutting through Booth's superficial appreciation, Zuleeg makes the obvious point that it isn't for the EU to state what it wants. It is for the UK to come up with workable solutions otherwise it will end up with no deal at all. This may have negative consequences for the EU-27, but is seen as the UK's choice and not something that needs to be avoided at all costs.

The reason why the EU-27 are willing to accept a negative outcome is that greater goods are at stake: the unity of Union, the integrity of the Single Market and the future of European integration.

Then, there is the other essential. While there is willingness to find a compromise with the UK, a country leaving the EU cannot be better off than a remaining member. Allowing cherry picking of benefits would act as a signal to others inside the EU that a Europe à la carte is obtainable, opening the Pandora's box of disintegration.

Something that simply has not percolated the public discourse here is that the EU-27 are not taking a hard line for the sake of it. This is not malevolence towards the UK. The Union is a community of law, underpinned by the Treaties and safeguarded by the European Court of Justice. The notion that the EU could somehow concede on fundamental aspects of the treaties, Zuleeg tells us, is not only unlikely but would be struck down by the Court when challenged.

To have any chance of success in the negotiations, Zuleeg says, the UK must address the myths and misconceptions of the EU-27s position. We need to realise that there will be little give from the other side of the Channel. Significant concessions will have to come from the UK if there is to be a viable deal.

For all that, these downbeat messages would not have quite the impact if we could see signs of realism in London. We do not. The prevailing ethos seems to remain that, when the negotiations reach their nail-biting conclusion, Brussels will cave in.

David Davis seems to be on another planet. Urging both sides to demonstrate a "flexible approach", he says he is "confident" that negotiations will continue as planned. MinBrex just utters platitudes saying: "we have already made good progress on a number of issues".

Yet, with "chlorinated chickens" still in the headlines, not a day seems to pass without some new twist or complication emerging, most often showing up the government to be unprepared or unable to offer a coherent response. And, as the many pages of this blog have shown, there are many other issues waiting in the wings, as yet unaddressed and unresolved.

These are negotiations that are going nowhere. The phase one issues that the EU has planted on the agenda are basically housekeeping matters that should never have been allowed to solidify and become major areas of discussion. They could and should have been pre-empted and headed off.

To allow discussions to get bogged down in the ultimately irrelevant detail of whether the ECJ should have a role in what may or may not be a transition period, with hyperventilation over the intricacies of the Efta Court, is to illustrate the lack of grip over the agenda. While the commentariat hyperventilates over detail, the big issues go begging.

And that is the ultimate indictment of this government and its Brexit strategy. Forget about what Brussels wants. After all this time, there is no indication that the UK has any clear (or any) achievable objective or that might be attainable is even worth having.

When the history of this sorry episode comes to be written, I guess the words "incompetence" and "lack of vision" will feature strongly in their narratives. But it will doubtless be accompanied by a sense of incredulity that our current crop of politician managed to make such a mess of things.

Even now, we could write that history so, when all the elements are finally in place, it will be an account of epic length.

Richard North 28/07/2017 link

Brexit: "retarded morons"


The issue-illiteracy of the media has moved up several notches of late with its treatment of the UK's impending withdrawal from Euratom and its supposed effect on the supply of medical isotopes to the UK.

One of the first to raise the issue of medical isotope supply was the Financial Times. In February last, it asserted that medical isotopes "used to treat cancer" would be hit by post-Brexit rule changes, suggesting that the UK would need "new international agreements" to keep its access to radiotherapy for cancer patients when the UK left Euratom.

The essential thrust of the story was that the UK imports all the radioactive medical isotopes used to treat many cancers and "access to these isotopes is currently assured through its membership of Euratom".

Then, rather confusing matters, the paper asserted that radiation therapies were "among many critical nuclear materials and technologies that the UK would no longer be able to import or export unless new agreements are reached with a range of countries and international organisations".

Citing Tom Greatrex, chief executive of the Nuclear Industry Association, they paper claimed that potential disruption to the UK's supply of medical isotopes such as molybdenum-99, used in 80 percent of radiation treatments, were among many "unintended consequences" that could result from a disorderly exit from Euratom, he added.

Supplies of molybdenum-99, says the paper, "are tightly regulated because the isotope, which is used to kill cancerous cells, is made from weapons-grade uranium in a small number of reactors around the world. Most UK supplies come from the Netherlands".

We then get Fiona Rayment, director of the National Nuclear Laboratory, cited as acknowledging that the UK did not have its own domestic source of molybdenum-99 and (in the paper's words), "imports would not be possible without new regulatory agreements after withdrawal from Euratom".

As one might expect with much that the Financial Times produces though, there are a few errors in what it tells us – specifically about molybdenum-99 (Mo-99). Firstly, this isotope has no direct medical (or other) uses. It is radio isotope with a half-life of 66 hours, the one function of which is to produce a very short-life isotope called Technetium-99m, with a half-life of six hours.

This is not directly (or at all) used in the treatment of any disease – not cancer or anything else. It is a radioactive tracer (hence the need for the short half-life), used in the diagnosis of some heart conditions and in bone cancer. The Technetium is produced in special "generators " (whimsically called Mo-cows), at the medical centres where the final isotopes are used.

The sale and distribution of pure Mo-99 and the Technetium generators have no security implications whatsoever. They do not even come within the remit of Euratom. Production is regulated by the European Medicines Agency, under the remit of Directive 75/319/EEC (as amended).

Generally, isotopes specifically for medical use (known as radiopharmaceuticals) which are manufactured in EU/EEA member states are freely exported around the world. Furthermore, globally, there are multiple suppliers. Thus, there, so there is no question whatsoever, of the UK having to be part of Euratom, specifically in order to gain supplies.

However, for complex reasons, explained here, the global supply position for Mo-99 is fragile. Thus, not only the UK is prone to supply shortfalls, so are other EU member states - a situation recorded here in some detail.

To improve on the supply situation within the EU, the EU commissioned via the Commission, the Euratom Supply Agency (set up within the remit of the Euratom Treaty) to take a series of measures. The actions taken are explained in this report, the effect of which is expected to improve the security of supply for EU/EEA members.

Strictly, the Agency is performing these tasks for and on behalf of the EU so, to gain the (limited) benefits, the UK would have to remain a member of the EU. Staying in Euratom (even if it was possible) would have no direct impact on the supply of medical isotopes in the UK.

That said, because of the relationship between the Agency and the EU, the UK may experience some supply difficulties – and some price increases. But this would be a consequence of leaving the EU. To mitigate potential effects, therefore, the UK will need to establish new relationships – either with the EU under the Article 50 settlement, or with other global suppliers and their host nations.

That, then, is the basic situation, but it didn't stop the Times the following day – in a familiar dynamic – repeating many of the errors perpetrated by the Financial Times.

Under the headline, "Treatment for cancer put at risk", we have Emily Gosden, the energy editor, earnestly informing us that the safeguarding arrangements needed to transport nuclear materials, including medical radioisotopes, "were accessed through its membership of Euratom". Withdrawal from Euratom, therefore, risked interruption to medical supplies.

This, to put it mildly, was stretching reality, with Gosden then seeking to embarrass the unwitting Fiona Rayment who is employed to tell us that molybdenum, "directs radiation to where the cancerous tumour is to kill it".

So the matter rested until yesterday when the Royal College of Radiologists issued a statement on "the potential impact of leaving the Euratom treaty". It had its president, Dr Nicola Strickland, state that: "We need assurances the radiation safety laws and regulations around movement of radioactive materials enshrined in Euratom will continue in the form of mirrored legislation post-Brexit".

That is fair enough, but it's actually not much of a problem. Because the EU has taken the directive route, the UK has been required to transpose EU law onto the UK statute book. Thus, we already have comprehensive rules in the Radioactive Substances Act 1993 - amongst many other measures, including regulations on labelling and transport, and the use of radioactive materials in hospitals.

Another concern of Strickland "is whether we could see increased radioisotope pricing as a result of leaving Euratom", adding "more costs to an already cash-strapped NHS". But that, while that is an issue, it is not – as we have seen – related to our membership of Euratom. It is a Brexit problem, and one that needs addressing.

Nevertheless, on the back of the accumulated errors, that has been enough to bring the Muppets out to play, in the form of nine MPs complaining about the "threat" to cancer patients. On the basis of an assumed threat, they assert that "staying in Euratom would be part of a responsible Brexit".

But Muppet-in-chief is the odious Dominic Cummings, who takes to Twitter to dismiss "Govt MORONS", withdrawing from EURATOM as "Near-retarded on every dimension". To this, he adds by calling on Mrs May to scrap "truck loads of c***ideas" - the colossal nerve of a man who rejected the idea of having a Brexi plan.

His grasp of the subject and his mastery of the issues so aptly illustrates why the man slated as the "architect of Brexit" is such a disaster. It also goes to explain why the post-Brexit debate is such a mess. On Euratom, though, all Downing Street can do is bleat that the claim of potential shortages of isotopes "simply isn't true". The availability of medical radioisotopes, it says, "will not be impacted by the UK's exit from Euratom".

The publicity given to the Second Cummings, however, makes an interesting contrast to the silence attending the work of the North family. But then we are told by the self-important Iain Martin that the reason we are "ignored" is because we "are so unpleasant to people".

This is from a man who lionises Cummings, despite the best known-skill of this creature being an ability to be so obnoxious that it can count as an art-form. With Martin's hypocrisy and the media's ignorance (alongside the MPs), this has become a powerful force with which, quite obviously, we are unable to compete.

Richard North 11/07/2017 link

Brexit: known by its omissions


Observing the more than usually lugubrious Prince Charles alongside his mother, yesterday, one could only marvel at the Queen's modernity in celebrating "bring your child to work" day.

Beyond that, two days short of the first anniversary of the EU referendum, there was precious little else to mark the day in a speech supposedly dominated by Brexit. This is what the Queen had to say:
My government's priority is to secure the best possible deal as the country leaves the European Union. My ministers are committed to working with Parliament, the devolved administrations, business and others to build the widest possible consensus on the country's future outside the European Union.

A bill will be introduced to repeal the European Communities Act and provide certainty for individuals and businesses. This will be complemented by legislation to ensure that the United Kingdom makes a success of Brexit, establishing new national policies on immigration, international sanctions, nuclear safeguards, agriculture, and fisheries.

My government will seek to maintain a deep and special partnership with European allies and to forge new trading relationships across the globe. New bills on trade and customs will help to implement an independent trade policy, and support will be given to help British businesses export to markets around the world.
One wonders if she actually listened to the words she had to say – whether there is some technology available which enables you to blank out the sound of one's own voice when speaking out loud. Only this – or perhaps long practice – would enable her to keep a straight face.

For all the vacuity, though, the words were oddly revealing, demonstrating a Government all at sea, locked in a bizarre "little Englander" paradigm that clearly shows that their priorities are dangerously skewed.

The issue, of course, is that if does not really matter that much whether the Queen's ministers "are committed to working with Parliament, the devolved administrations, business and others to build the widest possible consensus on the country's future outside the European Union".

What we actually need to know is whether ministers are committed to working with the European Union to that effect, because it is only by so doing that we are going to achieve anything at all which will stave off economic disaster. Bereft of any ideas of its own, the Government will find itself having to look to Brussels for its salvation.

As regards the legislative package, we are told that there will be 27 Brexit-related Bills in what the Prime Minister promises to be a busy legislative session.

The key measures will include the Repeal Bill – already flagged up innumerable times, which repeal the European Communities Act 1972 and convert EU law into UK law as we leave the EU. It will also create temporary powers for Parliament to make secondary legislation, enabling corrections to be made to the laws that do not operate appropriately once we have left the EU.

Additionally, there will be power to make changes to domestic law to reflect the content of any withdrawal agreement under Article 50 and to replicate the common UK frameworks created by EU law into UK law. This, apparently, will be a transitional arrangement to provide certainty after exit and to allow intensive discussion and consultation with the devolved administrations on where lasting common frameworks are needed.

Newly offered (to my recollection) is a Customs Bill. It is noted that the EU customs code currently applies directly in the UK and it now seems to have dawned on the few grown-ups left in Government that we will need our own code.

Thus, we are told, this Bill will ensure that the UK has a standalone UK customs regime on exit. It will give us the flexibility to accommodate future trade agreements with the EU and others, and it permits changes to be made to the UK's VAT and excise regimes to ensure that the UK has standalone regimes on EU-exit (assuming that we are keeping VAT).

One does worry more than a little here, though, because the customs regime will depend intrinsically on the agreements we are able to make with our trading partners, and in particular, the European Union.

Rather than ensuring that the UK has its own regime, therefore, one suspects that this will result in an enabling Act which permits ministers to promulgate the myriad of technical regulations that will allow the system to function. When we will see those regulations is another matter.

Following on from this is a Trade Bill which will (in the Government's words) "cement the United Kingdom's status as a leading trading nation, driving positive global change through trade, whilst ensuring UK businesses are protected from unfair trading practices".

That, for an Act of Parliament, is a pretty tall order. Some might even avow that this is not the function of an Act, and neither is the objective solely (or at all) within the Government.

Nevertheless, we are promised that the Bill will put in place the essential and necessary legislative framework to allow the UK to operate its own independent trade policy upon exit from the European Union. That seems more realistic, except that trade policy again will depend on the nature and scope of the agreement with the EU.

Next in line we have an Immigration Bill. With the repeal of the European Communities Act, we are told, it will be necessary to establish new powers concerning the immigration status of EEA nationals.

The Bill will allow the Government to control the number of people coming here from Europe "while still allowing us to attract the brightest and the best". It will allow for the repeal of EU law on immigration, primarily free movement, that will otherwise be saved and converted into UK law by the Repeal Bill, and make the migration of EU nationals and their family members subject to relevant UK law once the UK has left the EU.

Suspicious-minded people might note that the Act (when it comes into force) is not intended to end free movement, per se, but simply to "allow for the repeal of EU law". Whether we do, or not, is another matter.

Similar suspicions might be directed at the Fisheries Bill, which will enable the UK "to exercise responsibility for access to fisheries and management of its waters". One should note the ambiguous wording. There is no claim that the Government is to control access, or even manage the fisheries. Simply, we are to "exercise responsibility" – which is an altogether different thing. If not actually a sell-out, it paves the way for one.

Less ambiguous is the Agriculture Bill, which will ensure that after we leave the EU we have an effective system in place to support UK farmers and protect our natural environment. The key thing, as far as the farmers will be concerned, will be the amount of money in the kitty, and the terms of its distribution. And that we will not know until secondary legislation appears.

Nevertheless. The motherhood and apple pie words are there, with the Bill aiming to provide stability to farmers as we leave the EU and to "protect our precious natural environment for future generations".

Then a Nuclear Safeguards Bill will establish a UK nuclear safeguards regime as we leave the European Union and Euratom. This will take over from locally administered provisions of Euratom, giving the Office for Nuclear Regulation powers to take on the role and responsibilities "required to meet our international safeguards, and nuclear non-proliferation, obligations".

An International Sanctions Bill will support our role as a permanent member of the UN Security Council and a "leading player on the world stage", by establishing a new sovereign UK framework to implement international sanctions on a multilateral or unilateral basis.

This Bill, we are told, will return decision-making powers on non-UN sanctions to the UK and enable the UK's continued compliance with international law after the UK's exit from the EU.

Here, the devil is in the detail, but the very presence of this Bill in the line-up indicates that there might be some grown-ups left in the deepest recesses of Whitehall. Where this takes us will need careful watching.

Of the other Bills, these have relevance in dealing with the consequences of Brexit, such as the Space Industry Bill. Bearing in mind that we could drop out of the EU's space programme (although this would be ill-advised), the Bill will create new powers to license a wide range of new commercial spaceflight, including vertically-launched rockets, spaceplanes, satellite operation, spaceports and other technologies. It also creates a regulatory framework to manage risk, ensuring that commercial spaceflight in the UK remains safe.

Intentional or not, this actually gives a strong signal that the UK is not looking for cooperative ventures with the EU, although we will have to wait to see where we go with Galileo and other projects.

Here, and elsewhere, though, there are strong elements of wishful thinking – and much missing on the Brexit front. We should be getting clear indications of how the UK intends to frame the negotiations, especially if there is to be a transition agreement. It is hard to see whether that could be achieved without new legislation.

However, asking for such detail is probably too much to ask, as the Government itself most likely does not know its own intentions. It has thus been said that this Queen's speech will be best known for what it left out. The omissions may well prove to be more important than what so far has been revealed.

Richard North 22/06/2017 link

EU budget – the lies they tell


000a Guardian-008 budget.jpg

If you actually want to know what has happened at a Council of Ministers meeting, a good starting point is to look at the press release (communiqué). In the case of the recent Finance Ministers' meeting, therefore, the first place to look for verification of Mr Osborne's claims to have cut the supplemental demand for £1.7bn is to look at this press release.

Strangely, this is not exactly rocket science – EU institutions have been issuing press releases for several decades, so they are not uncommon things to expect. And in this case, we see in the relevant release, a statement from the presidency:
The Commission has informed of the outcome of the annual corrections to the VAT-and GNI– based own resources, pursuant to Article 10, paragraphs 4 to 8 of Regulation (EC, Euratom) No 1150/2000. In particular due to the major revisions of the GNI of several Member States, their additional contributions to the EU budget will be substantial. In addition, the regulatory delay until the payment date of the first working day of December is short. This may result in exceptionally high fiscal implications for those Member States.

The Council therefore invites the Commission to come forward with a proposal for a targeted and limited amendment to the Council Regulation No 1150/2000 to take account of such exceptional circumstances. This should allow for the Member State concerned to defer the required payment over a reasonable period of time (no later than 1 September). For the sake of equal treatment of all Member States, deferral should then be an option for all if the overall sum of the GNI balances is exceptionally high. Taken into account the tight deadlines, this amendment should come into effect by the 1 December this year (retroactively if needed).

At the same time, recognising the need to address the unprecedented increase of unpaid claims across all headings and programmes in the EU budget, the Council agrees to work constructively, including the use of the flexibility instruments agreed in the MFF 2014-2020, to adopt a position on the draft amending budgets for 2014 in a timely manner, while recalling the position already adopted by the Council on the draft budget for 2015.
The key paragraph is the second one, where we see the reference to Regulation (EC, Euratom) No 1150/2000. This was the same instrument to which I drew attention in my earlier piece. The change of record thus seems to be a "proposal for a targeted and limited amendment" to the regulation to allow Member States with "exceptionally high balances" to defer the required payment over a reasonable period of time, up to 1 September next year.

That is the only substantive change, and one which had already been agreed between the presidency and the Commission. If there were to be changes to the amounts payable, there would have to be a legal base for this. This would require a major overhaul of the regulation, in turn requiring a proposal to that effect, and the application of the full amendment procedure. Yet, as we see, there is no such proposal.

Following a reduction of the UK contribution, there would then have to be a corresponding increase in payments from other Member States. This would require a prolonged period of negotiation, on top of the new law adapting the existing payment framework. Of this, there is no sign.

Should the Commission simply be reducing UK payments unilaterally (for which it has no legal authority), it would then have to amend the budget. But there is sign of a new budget, and the last substantive Draft Amending Budget still stands. Rather, the Council is enjoined "to adopt a position on the draft amending budgets for 2014 in a timely manner".

Thus, whatever went on yesterday, the UK liability for £1.7bn was not reduced at this Council. The Guardian is right to dispute the claim, therefore, even if it hasn't nailed the reason why Osborne's claim is fraudulent.

What in fact has happened is that Mr Osborne has been indulging in a little creative PR off piste. The Council meeting is a red herring - the deal has been done in les couloirs of the Commission. 

As far as the Commission is concerned, the Treasury admits liability to the whole £1.7bn - thereby keeping the books balanced. But it will only physically pay about half of it. The Commission, in turn, will bring forward the UK's rebate payment from 2016 – which includes the normal adjustment for supplemental payments. Then, instead of physically paying it to the UK, it will remit it to its own account, to offset the current liability.

Because this current supplement is unusually large, Britain's 2016 rebate will be larger than it might otherwise have been (final rebates are worked out two years in arrears). With the enhancement, the European Commissioner responsible for budget issues, Kristalina Georgieva, is suggesting that "preliminary calculations" indicate that the UK will have physically to pay only about €1bn of the supplement (slightly less than half). The rest will come out of rebate. 

Trading the current payment against our future rebate, however, achieves the political effect of taking the bulk of the payment off the books, and concealing the physical transfer of funds. And since the UK reports EU transfers on a financial year basis, while the Commission uses the calendar year, there is scope for even more confusion and obfuscation.

The fact remains, though, that the amount the UK will have to pay the EU hasn't changed. It is exactly the same now as it was yesterday morning, before Mr Osborne's famous "victory" – about as substantial as Mr Cameron's famous "veto".

Why they think they can get away with it is moot. But Mr Cameron having fooled most of the media into believing in a non-existent veto, Mr Osborne probably believes his sleight of hand is enough to convince the electorate that there has been "a result for Britain".

Since this is the way they usually handle EU matters – feeding us with a diet of lies, deceit and half-truths – and most of the time they get away with it, there is a good chance that the lies will work again. However, this time they have been outed very early in the play. We will see whether it sticks.


Richard North 08/11/2014 link

EU politics: budget games


000a EP-022 budget ag.jpg

The legacy media has been playing catch-up for the last day or so, not least the Telegraph, which has mistakenly labelled the Commission's demand for €2.7 billion cash as another Brussels overspend.

As we identified last night, the call arises because revenue from import duties collected at the EU's external borders was far lower than was forecast and thus had to be replaced with GNI contribution. Thus, this is not additional money that was being demanded – rather, it has to be paid directly by member states instead of from the proceeds of tariffs collected by them.

Ironically, UKIP's Nigel Farage is claiming that, "The EU are trying desperately to keep this out of the news", despite the European Parliament pouring out press releases, including this one, with EP president Martin Schulz also making public statements in the plenary chamber.

The Telegraph isn't much better, attributing words by Mr Schulzto to a statement, when he actually delivered the news orally to the plenary, with the BBC publishing a video record. The paper also claims that the "European Union" has voted through €2.7 billion in new cash contributions.

Technically, though, the EU hasn't yet approved the amending budget. It was adopted at an emergency session of the Council yesterday, and then by the Budget Committee. But, to be formally adopted, it must now be agreed by the European Parliament as a whole, with the vote expected later today.

Nevertheless, there is more to all this than meets the eye. Looking at the complex procedures involved, this budget was triggered by an amending letter from the Commission which was actually published on 18 September, in accordance with the Regulation (EU, Euratom) No 966/2012.

This puts a different light on this "crisis", as the intention of the Commission to call for a reallocation of funds had been signalled over a month ago. There should have been no surprise at this development. Thus, Spiegel, amongst others, is darkly suspicious of what appears to be game-playing in an institutional power struggle.

What hasn't been settled, of course, is the €3.9 billion shortfall, or the multi-annual financial framework, which is still in abeyance. We must, therefore, expect a further episode of game-playing before the issue is finally settled.


Richard North 23/10/2013 link

Supposi-Tory waffle


David Cameron has asked Lord Young, the Tory peer, to review "over-the-top health and safety laws" and scrap any legislation which does not fulfil a useful purpose.

The man claims that the European Union and Labour were "partly to blame" because of the volume of legislation they had created. But, he said, the biggest problem related to the way laws were interpreted. He complained about the "perception we have allowed to develop that in Britain today behind every accident there is someone who is personally culpable, someone who must pay."

Thus does he avoid the "elephant in the room". Health and safety at work is, of course, an exclusive EU competence. Thus, the EU is responsible for European directives concerning the protection of workers, of which this is a list:

1.1 Framework directive
1.2 Individual directives (within the meaning of Article 16 of Directive 89/391/EEC)
1.2.01 Workplaces
1.2.02 Use of work equipment
1.2.03 Use of personal protective equipment
1.2.04 Work with display screen equipment
1.2.05 Manual handling
1.2.06 Carcinogens
1.2.07 Biological agents
1.2.08 Safety signs
1.2.09 Pregnant workers
1.2.10 Mineral-extracting industries (drilling)
1.2.11 Mineral-extracting industries
1.2.12 Fishing vessels
1.2.13 Chemical agents
1.2.16 Temporary or mobile construction sites
1.2.14 Physical agents - vibration
1.2.15 Physical agents - noise
1.3 Temporary workers
1.4 Medical treatment on board vessels
1.5 Young people
1.7 Transport activities
1.8 Explosive atmospheres
1.9 Electrical equipment for use in potentially explosive atmospheres in mines susceptible to firedamp
1.10 Commission Communication on the practical implementation of the Framework Directive and first 5 daughter Directives, 05.02.2004
2. Protection of workers from risks related to exposure to chemical, physical and biological agents
2.1 Chemical agents
2.2 Individual directives
2.2.1 Metallic Lead
2.2.2 Asbestos
2.2.3 Noise
2.2.4 Banning
2.2.5 Indicative limit values
2.3 Vinyl chloride monomer
3. Working time
3.1 Working time
4. Equal treatment for men and women (employment, training and working conditions)
B. Internal market: approximation of laws
1. Machines, products and apparatus
1.1 CE marking 93/68
1.2 Machines
1.3 Lifts
1.4 Personal protective equipment
1.5 Equipment and protective systems intended for use in potentially explosive atmospheres (ATEX)
1.6 Pressure vessels
1.7 Gas cylinders
1.8 Aerosol dispensers
1.9 Simple pressure vessels
1.10 Pressure equipment
1.11 Construction plant and equipment
1.11.1 General provisions
1.11.2 Noise emission of construction plant and equipment Sound power level of welding generators Sound power level of compressors Sound power level of power generators Sound power level of powered hand-held concrete-breakers and picks Sound power level of tower cranes Sound power level of lawnmowers
1.12 Limitation of noise emitted by hydraulic excavators, rope-operated excavators, dozers, loaders and excavator-loaders
1.13 Construction products
1.14 Product safety
1.15 Electromagnetic compatibility (EMC)
1.16 Electrical equipment designed for use within certain voltage limits
1.17 Appliances burning gaseous fuels
2. Dangerous substances and preparations
2.1 Framework directive
C. European directives concerning the protection of workers, consumers and population
1 Classification, packaging and labelling of dangerous substances
1.1 Framework directive
2 Classification, packaging and labelling of dangerous preparations
3 Safety data sheet
4 Risk assessment of substances
4.1 Risk assessment of existing substances
4.2 Risk assessment of new substances
5 Liability for defective products
6 General Product Safety
7 Major hazards of certain industrial activities
8 Transport of dangerous goods by road
8.1 Transport of dangerous goods by road
8.2 Checks on the transport of dangerous goods by road
8.3 Safety adviser for the transport of dangerous goods
9 Transport of dangerous goods by rail
10 Biotechnology
10.1 Genetically modified micro-organisms
11 Pesticides
11.1 Pesticides – Agriculture
D. Euratom
1 Ionising radiation

Those are just the Directives. That does not include the seven-page list of regulations, and the thousands of EU standards. The betting is that the Boy plans to scrap none of these. This is the usual supposi-Tory waffle - sound-bites to sound good, but no substance.


Richard North 01/12/2009 link

Life still goes on


Heigh-ho, another list of European documents arrived the other day. Still yellow and still A5 but only 9 sides this time. Let us see what delights it has.

The first side lists 4 Volumes of the C Series of the Official Journal of the European Union (Information and Notices) and 4 volumes of the L Series (Legislation). Those publications continue to be useful to anyone who is really interested in how legislation is done throughout the European Union, including Britain, though this fact is a little hard to explain to people sometimes.

An item about Tenders and we come to the Working Documents. Most of these seem to be connected with the work (if that is the right word) of the European Parliament. The first one, however, is quite interesting:

A6 – 0052/2007 5th March 2007 – Report on the initiative by the Republic of Austria with a view to adopting a Council decision amending Decision 2002/348/JHA concerning security in connection with football matches with an international dimension.

Ah yes, something hovers around my consciousness about the Austrian Presidency wanting to sort out football hooliganism for the World Cup. Undoubtedly, this initiative will go on to emerge with various unenforceable Regulations.

We have three Reports on proposals, to wit:

A6 – 0055/2007 6th March 2007 – I Report on the proposal for a Directive of the European Parliament and of the Council on the civil liability and financial guarantees of shipowners.

A6 – 0062/2007 7th March 2007 – I Report on the proposal for a Regulation of the European Parliament and of the Council concerning structural business statistics

A6 – 0065/2007 13th March 2007 – Report on the proposal for a Council Decision on the Community participation in the capital increase of the European Investment Fund.

That last one, I suspect, is another way of throwing taxpayers’ money into something that should be done entirely by the private sector.

After this we get one Oral Question for Question Time during the European Parliament Plenary in March and lots and lots of Motions. Motion for a Resolution on EU restrictions on liquids that passengers can carry on aircraft; Motion for a Resolution on Euro-Mediterranean relations; Motion for a Resolution on a possible reform of EU trade policy instruments; Motion for a Resolution on non-proliferation and nuclear disarmament; and other suchlike goodies. All this takes up the time of various MEPs and I would not object to it particularly, as it keeps them off the streets. But we are paying for this rubbish. Each MEP costs us something in the region of £1 million a year. Are they really necessary?

As we have just had a plenary sitting of the European Parliament (well, something like three weeks before this document was published but that is “just” for the EP) there are several volumes of verbatim reports of the proceedings and Minutes of meetings as well as three lots of texts adopted during the sittings. Of course, most of the EP’s work (if that is the right word) goes on in committees so plenary sessions are of marginal importance.

Draft Legislation this time round consists of 25 items but someone are not really in the right section, though it is hard to tell where you would put

7550/07 EUROJUST Annual Report 2006?

I suspect it could be an interesting read, though.

Anyway, in no particular order, here are six examples of draft legislation, which will, probably, in the fullness of time lose the “draft” bit:

6313/1/07 REV 1. Proposal for a Regulation of the European Parliament and of the Council laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State and repealing Decision 3052/95/EC.

7413/07. Proposal for a Regulation of the European Parliament and of the Council on quarterly statistics on Community job vacancies.

7525/07. Communication from the Commission – State of progress with the project to implement the new generation European air traffic management system (SESAR).

7615/07. Communication from the Commission to the Council in accordance with Article 19(1) of Council Directive 2003/96/EC (operation of private pleasure craft and private pleasure-flying).

Hmm. Shouldn’t all that private flying be banned to prevent greater global warming? Oh no, sorry, we wouldn’t get people flying around telling us to switch off our central heating and get all our energy from windmills.

7628/07. Proposal for a Council Regulation on the financial Regulation applicable to the Euratom Supply Agency.

7750/07. Proposal for a Regulation of the European Parliament and of the Council concerning meat and livestock statistics.

All right, so it is all very dull. Of course, it is dull. And there is plenty more where that came from, also very dull. But it is these bits of dullness that have created the spider's web that has entangled this country to the point when even coming out of the European Union will be so fraught with difficulty as to be almost unmanageable.


Richard North 17/04/2007 link

The constitution – an analysis


This analysis has been compiled by the National Platform EU Research andInformation Centre, 24 Crawford Avenue, Dublin 9, Ireland.

It draws from many sources and has been checked for legal accuracy by authorities on European law; its political judgements are those of its compilers. The National Platform is affiliated to The European Alliance of EU-critical Movements (TEAM), which links together some 60 organisations in 20 different European countries that are concerned on democratic and internationalist grounds at EU developments, excluding racist or fascist bodies ).

The National Platform's secretary is Anthony Coughlan, who is an economist and Senior Lecturer Emeritus in Social Policy at Trinity College Dublin, and who may be contacted at 00-353-1-8305792


An analysis of the Constitution that makes the EU into a State

"The Constitution is the capstone of a European Federal State."

Guy Verhofstadt, Belgian Prime Minister, Financial Times, 21-6-2004

"For the first time, Europe has a shared Constitution. This pact is the point of no return. Europe is becoming an irreversible project, irrevocable after the ratification of this treaty. It is a new era for Europe, a new geography, a new history."

French Prime Minister Jean-Pierre Raffarin, Le Metro, 7-10-2004

We know that nine out of 10 people will not have read the Constitution and will vote on the basis of what politicians and journalists say. More than that, if the answer is No, the vote will probably have to be done again, because it absolutely has to be Yes."

Jean-Luc Dehaene, Former Belgian Prime Minister and Vice-President of the EU Convention, Irish Times, 2 June 2004


The Treaty Establishing a Constitution for Europe, to call it by its proper official name, is not just another EU treaty. This Treaty (Art.IV-437) repeals all the existing EC/EU treaties from the Treaty of Rome to the Treaty of Nice and then founds or establishes quite a new EU, based on its own Constitution. Legally, constitutionally and politically this new European Union would be quite different from the existing EU.

The new EU, founded on its own State Constitution, in fact becomes a new European State in the world community of States. A young State and a new one, a weak State perhaps, but a State nonetheless, with virtually all the essential features of a State, in which the existing Member States are reduced to the constitutional status of regions or provinces. Simultaneously the EU Constitution becomes the fundamental source of legal authority within Europe, supplanting the Constitutions of the Member States as the ultimate source of legal power.

The EU Constitution becomes part of our Constitution and will not be amendable except with the consent of other countries. This is therefore the most decisive step ever in the near-60-year-old project of European integration, aimed at turning the EEC/EC/EU into a fully-fledged State, a superpower in the world.

To call it a "constitutional treaty" is to downplay its significance. "Constitutional treaty" implies that this is comparable to previous EU treaties like Nice, Amsterdam, Maastricht, and the Single European Act, whereas the most important thing about it is that it is a Constitution as well as a treaty. In international law a Treaty is a contract or agreement between independent States, the High Contracting Parties, as equal sovereign partners.

A Constitution is the fundamental law of a State, setting out its institutions of government, how it makes its laws, determines its policies and actions and relates to other States. This treaty will only be a treaty until the Constitution comes into effect. From then on it is the Constitution we will be bound by and will have to obey.

Article 1.1 of the Treaty Establishing a Constitution for Europe states: "This Constitution establishes the European Union." As the European Union already exists as an intergovernmental cooperation between its Member States established by the 1992 Treaty of Maastricht, what this Treaty-cum-Constitution proposes is an EU that would constitutionally, legally and politically be a fundamentally different thing from the EU we are at present members of.

Article I-7 gives this new European Union, established now on the basis of its own Constitution, legal personality and a distinct corporate existence for the first time. Hitherto the EU has had no legal existence apart from its Members. At present the Member States, not the EU, are superior. This is shown by the fact that the Member States if they wished could agree at any time to dissolve both the EU and EC, and interact with one another like the rest of the world community of States, and as they did themselves before the 1957 Treaty of Rome established the European Economic Community (EEC).

The Constitution changes this. Legally and constitutionally it makes the new EU separate from any of its individual Member States, just as Germany is a separate state from Bavaria or Brandenburg, the USA from Virginia or California, and Canada from Ontario. This is the most essential constitutional step for those who seek to turn the EU into a State, an international actor in its own right for the first time.

Article I-6 then provides that "The Constitution and law adopted by the Institution of the Union in exercising competences conferred on it shall have primacy over the law of the Member States." Thus the proposed Constitution of this new EU overrides and is superior to the Member States' national Constitutions, potentially in all areas of public policy; for the EU Constitution does not seek to reserve any governmental area permanently from EU control. The central issue concerning the EU Constitution is this:

Which Constitution takes precedence, the European one or the national? That after all is the central question of politics: Where do power and legitimate authority lie? The Treaty Establishing a Constitution for Europe is clear. The new EU State and its Constitution will be paramount.

If the Constitution is ratified, the EU Member States would constitutionally and legally become provinces within a European Federal State, with their national democracy, sovereignty and political independence abandoned as they agree formally to subordinate themselves to the superior entity, as in any State Federation.

The Constitution's continental champions are quite honest about this, like the Belgian and French Premiers quoted above. In fact an earlier draft of Article 1 stated explicitly that the Union would exercise its competences "on a federal basis." The word "federal" was dropped because of concern that it would hinder ratification in some countries.

The Article now provides that the Union will exercise its competences "in the Community way." That is a Federal Statist way, even if the words "Federal" and "State" are not used. In a Federal State there are two levels of law-making, with the Federal level superior to the provincial or regional level.

Having repealed all the existing EC/EU treaties, the Treaty Establishing a Constitution for Europe then reapplies the existing body of EU law, some 100,000 pages of it, as if it were made under the constitutional primacy of the Constitution established by the new Treaty.

Simultaneously it transfers some 40 further areas of government policy or national decision from the Member States to the new Union, centralising them in the Brussels Institutions.


It is an historical moment of some importance - this attempt to turn much of the continent of Europe into a State and world power, in which 25 previously sovereign Nation States are reduced constitutionally to provincial status in a European Federation. Their hitherto sovereign peoples and national Parliaments must thereafter obey the laws made by the 25 politicians on the Council of Ministers in Brussels, backed by the EU's supranational bureaucracy.

This is no longer a question of States "pooling sovereignty" in some limited areas of government, the better to attain certain agreed purposes. "Pooling sovereignty" was always a misleading term anyway, aimed at disguising from the public the reality of what was happening. The legal concept of sovereignty has nothing to do with international power or economic weight. It refers to the exclusive right of a State to make its own laws, and consequently of its people consequently to govern themselves.

It is therefore no more possible to "pool" sovereignty than it is to be half-pregnant! But in so far as people believed that EU membership involved some such pooling, the Constitution's provisions now show the unreality of that. Under the Constitution the sovereign powers of the European Union would be vested in European Institutions, the EU Council, Court, Commission and Parliament, which are given legal supremacy over the laws and sovereignty of the Member States.

The EU and its Institutions would become our new sovereign. We would all, for the first time, become legally bound as direct citizens of this new legal entity. One can only be a citizen of a State. Under the Constitution we would legally become citizens of the new European Union, not just as an honorary title, an adjunct to national citizenship, as under the Treaty of Maastricht, but with rights and obligations direct to the European institutions rather than through our national institutions.

Article 1-10 provides: "Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Constitution."The once-in-a-lifetime decision of adopting the EU Constitution would directly concede power and sovereignty to the EU over the legal and constitutional framework that guards our civil liberties and democratic rights. It would do this for our children and future generations. It would change the international status of our country from being an independent democratic State to being a subordinate state within a greater European power.

Those pushing the Treaty Establishing a Constitution for Europe are effectively asking us to be abandon our right to determine the laws we agree to obey and to decide our own government, which is our most fundamental democratic right.


Parts 1 and 2 of the four-part Constitution are its core constitutional parts. Part 3 transposes most of the existing EU policies into the Constitution, while adding some new ones. This doubtless is what has led some politicians to refer to it as a "tidying-up exercise". That is to play down the significance of what it proposes.

A fundamentally important point here is that the EU Court of Justice (ECJ) which interprets EU treaties and will interpret the Constitution if it is ratified, does so in relation to their "objects and purposes", as shown by their preambles or other evidence of the intentions of their drafters.

That is the continental legal tradition, in contrast to the emphasis in English-speaking countries on the meaning of the wording of treaty provisions in the present tense.

The ECJ has laid down in the 1992 EEA Agreement Case that identically worded provisions in two separate treaties can be interpreted to have very different effects. Clearly changing the legal basis of the European Union from a series of treaties to a self-contained Constitution would fundamentally alter the Court's view of the objects and purposes of the legal texts it is applying.

In practice, there would be a presumption that the Member States are only permitted to exercise powers in the residual areas left to them under the Constitution, and even in those areas they would be regarded as constitutionally obliged to fit in with any over-arching EU policies or foreign policy imperatives in accordance with their general duty to "facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives"(Art.I-5).

Shifting the EU from a treaty basis to a constitutional basis would radically affect the Court's interpretation and application of treaty provisions as well as of the scope of EU directives and regulations. Henceforth all EU laws would be interpreted by the Court as having the force of constitutional law. It would be quite proper of the Court of Justice to see all areas of national government as either actually or potentially subordinate to the EU Constitution.

If the proposed Constitution is ratified, the only significant power of Statehood the EU would not possess would be the power to impose taxes. The EU State-builders aspire to that in time and the Constitution opens a legal path towards it. One can only be a citizen of a State, so the Constitution makes us legally real European Union citizens for the first time, for up to now the EU did not have legal personality or a corporate existence on its own account.

Only the European Community, covering the supranational areas of the EC treaties, had that under the Treaty of Maastricht. Now the new EU State will be founded on its own Constitution just like other States.

It will possess its own population and citizenship, a territory, an external frontier, a currency(the euro), an armed force(the EU Rapid Reaction Force), an embryonic police-force in Europol and judiciary in Eurojust, a legislature in the Council of Ministers and EU Parliament, an Executive (the EU Commission), a Supreme Court (the ECJ), a political President (the proposed President of the European Council), a Public Prosecutor's Office, a human rights code (the EU Charter), a foreign and security policy, a Foreign Minister and diplomatic corps, a body of federal law that covers ever-expanding areas of life and that is accepted as superior to national domestic law in any case of conflict, and power to conclude international treaties with other States in the ever-growing areas of its exclusive competence.

A State needs its State symbols. Unsurprisingly therefore Article I-8 of the Treaty Establishing a Constitution for Europe provides that the EU State is symbolically capped with its own flag, anthem, motto and annual public holiday - Europe Day - which are given a legal treaty-cum-constitutional basis for the first time.

The new EU State will have control, or potential control, according to the terms of its Constitution, over all areas of public policy, even though in a new and young State it can take time for that to become clear. A European Union founded on its own Constitution may seem a weak State by comparison with other States and to have some peculiar institutional features.

But it would be no weaker than the early USA after it first adopted its Constitution and before it became strong and centralised enough to prevent some of the Member States that founded it breaking away in the 1860s American civil war. The EU State may strengthen, break-up or remain weak in the years to come - only time will tell - but a State it undoubtedly will be if the Treaty is ratified and the Constitution comes into force.


There are some positive proposals in the Treaty Establishing a Constitution for Europe. It provides that part of the meetings of the Council of Ministers when they are formally adopting new EU laws would be held in public, although most of their discussions would still be in private. It provides that one million or more EU citizens coming from "a significant number of Member States" may petition the Commission to propose a new EU law to the Council of Ministers, although neither the Commission nor the Council need accede to such a request.

A Protocol on Subsidiarity lays down that the Commission must give National Parliaments prior notice of any law it intends to propose, and if one-third of these contend that the proposal violates the principle of subsidiarity, the Commission must review its proposal, after which it may decide to maintain, amend or withdraw it. The Constitution also provides for a Member State that wishes to leave the EU, although the procedure it lays down for this could significantly disadvantage a State that sought to negotiate a fair withdrawal agreement.

The EU Member States can introduce all these changes anyway, in so far as they are desirable, without establishing the EU itself as a State on the basis of its own Constitution.


The most revealing account in English of the history of European Iintegration to date is C. Booker and R. North's "The Great Deception, The Secret History of the European Union" (Continuum, London and New York, ISBN0-8264-71056-6) A revised paperback edition of this book, bringing the story down to the signing of the Constitution, will be published in spring 2005.

Why do these authors speak of "deception"? Because the process of building a Europe-wide State has taken place in gradual steps, by governments using stealthy salami-tactics, a series of five treaties between 1986 and now, each of which has been represented to the public in the Member countries as necessary and desirable for economic growth and jobs.

But the real political State-building aim has been subscribed to only by the key political, economic and bureaucratic elites that are pushing the project. It has not been agreed to by the citizens of the different countries of Europe, although the Constitution confronts them with that choice clearly for the first time.

There have been five gradual steps to the EU State Constitution:

1957 Rome Treaty: free trade; a protected agriculture; supranationalinstitutions in the EU Commission, Council of Ministers and EU Court ofJustice;1987 Single European Act Treaty: the internal market; wide use of majorityCouncil voting to make EC laws;

1992 Maastricht Treaty: the euro as a single currency for the eurozone, but excluding Britain and Denmark, with Sweden opting out de facto in its 2003referendum; beginnings of a common foreign and security policy;

1998 Amsterdam Treaty: "the progressive framing of a common defence policy";2003 Nice Treaty: "enhanced cooperation"; sub-groups of EU States may usethe EU institutions for closer integration among themselves even if othersdisagree, opening the way to an unequal EU with an inner core dominated bythe Big States.

The historical origins of the EU project are in the 1920s and 1930s, withJean Monnet and others who conceived and pushed it for decades. Threefactors gave it impetus after World War 2:

* State Power Motivation:

Well-known Norwegian sociologist Johan Galtung sums that up as follows:"One basic formula for understanding the Community is this: 'Take fivebroken empires, add the sixth one later, and make one big neo-colonialempire out of it all" (The European Community, a Superpower in the Making,1973.)

It is not the whole story, but it is perhaps the most essential partof the story. The "foundation myth" of the EU is that it has its origins asa peace project to prevent wars between France and Germany. In fact war wasimpossible between individual members of either of the two blocs during theCold War. Washington and Moscow would just not have permitted it. The atomic bomb makes inter-State wars in Europe impractical anyway. Most wars are civil wars.

The end of the Cold War in 1989 brought war back to Europe after 45 years of armed peace - in Yugoslavia and Chechnya. The real historical model for the EU is the unification of Germany in the 19th century, which began with a customs union and common market, then became a confederation of formally equal states, and then a unified Federal State with one Constitution, currency, army and government to represent it internationally vis-a-vis other States.

* Economic Motivation:

The aspiration of European-based transnational firms to be as free as possible of national State control and interference and to obtain maximum freedom of operations for their profit-maximizing activities. Constitutions do not normally enshrine an economic ideology, which is the stuff of debate between political right and left, but set general rules for working out such differences.

By contrast the Treaty Establishing a Constitution for Europe erects extreme neo-liberalism, laissez-faire, a competitive market economy on the basis of cross-national free movement of goods, services, capital and labour, and a monetarist economic policy into constitutional principles.

These are especially congenial to the EU-based transnational firms organised in the EU Employers Federation, UNICE, and the European Round-Table of Industrialists, who have been the principal advocates of successive EU treaties prior to their negotiation, and major backers of the international European movement.

* Personal Power Motivation:

The process of EU integration transfers power from elected national parliaments and governments to a small number of politicians and bureaucrats, who obtain a huge accretion of personal power thereby.

At national level Ministers are part of the executive arm of government, responsible to their elected national parliaments and citizens. But transfer a particular policy area to Brussels and the relevant national Ministers become supranational EU legislators, members of what is literally an oligarchy, a legislative committee, of 25 persons on the EU Council of Ministers who make laws for 450 million people.

They are irremoveable as a body. They become ever more distanced from their national electorates. Their willingly accepted personal task vis-à-vis their fellow Ministers, with whom they interact on first-name terms, becomes to deliver their peoples in support of further EU integration National parliamentarians who aspire to become Ministers, whether they are in government or opposition, go along with this. Someone has described this process as "a slow coup against political democracy". It means that at national level those running the State itself become party to depriving their fellow citizens of the power to make their own laws and decide their own government.

Simultaneously at civil service level senior members of national bureaucracies are substantially freed from public scrutiny as powers are transferred to the bureaucracy in Brussels with whom they regularly interact. There they prepare EU laws for enactment by the Council of Ministers outside the ken of national parliaments or even the European Parliament, which can propose amendments to EU laws but cannot have those amendments adopted without the agreement of Council and Commission. Democracy, public accountability, wilt or disappear. This process, which would accelerate under the EU Constitution, is clearly building inevitably to a major crisis of democracy across our continent.


It is possible to turn the EU into a State, but it is not possible for that State to have a democratic basis. The reason is that democracy means rule by the demos, the people, through the representatives they elect and on whom they confer legitimacy and authority.

A European people does not exist except in the statistical sense, and one cannot be artificially created from above in the way the EU is attempting. The 450 million inhabitants of the EU are divided into many peoples, real national communities speaking their own languages, who desire to make their own laws, decide their own government and self-determine themselves as they have done for generations through representatives they elect and who are responsible to them.

The EU cannot be democratised by giving the European Parliament power to make laws instead of the 25-person Council of Ministers, as some suggest. The democracy that is needed to underpin a stable State is not just majorityrule, but majority rule on the basis of a community, a demos, normally a national community, where there is sufficient mutual identification and solidarity among its members as to induce minorities willingly to obey the majority, so giving majority rule its legitimacy and authority.

The existence of such a real, self-aware community is crucial for underpinningthe legitimacy and stability of a State with its own tax and public service system, from which some citizens are net gainers and others are net losers - if that State is to be stable and endure. It is the absence of such a community at European level, and the impossibility of artificially creating it, that is the root cause of the EU's crisis of authority and acceptability.

The EU's "democratic deficit" problem is inherently insoluble without repatriating major powers back from the supranational to the national level. The Constitution does the opposite of this. If it is ratified it can only worsen the crisis of democracy at both EU and Member State level. Just as people often only appreciate the value of health when they become ill, they appreciate the value of their democracy only when they have lost it, and they must begin the struggle to win it back again.

So it is and will be with the EU.


The 105-person body, the Convention, that drew up the Draft Constitutionwas set up by the Laeken Declaration of EU Presidents and Prime Ministersin December 2001. This Declaration acknowledged the lack of democracy and transparency in the EU, said that the Union needed to be brought closer to its peoples, referred to the possibility of "restoring tasks to the Member States" and the possibility "in the long run" of adopting "a constitutional text."

Instead the Convention, which was dominated by Federalist EU-State-builders, rushed headlong into drafting a Constitution that for the first time makes the EU separate from and superior to its constituent Member States, transfers more powers from Member States to the EU, reduces the power of national parliaments and citizens further, and contains not a single proposal to repatriate powers from Brussels to Member State parliaments.

Over 1000 amendments were proposed, but the Convention chairman, former French President V.Giscard d'Estaing, ruled out any votes. Giscard decided when there was a "consensus" and that was that. The Draft Constitution was amended by the June 2004 EU summit of Presidents and Prime Ministers in relation to the population-based voting figures, the reduction in the number of Commissioners to two-thirds of the Member States after five years etc.

There has been no popular demand that the EU should be turned into a European State on the basis of its own Constitution. It is Europe's powerful political and bureaucratic elites, especially in the Big Countries, that are pressing that. Small Country elites are happy to go along, in particular if they face big problems at home, as the East Europeans do, for which they can henceforth seek to put the blame on Brussels.

What fundamentally inspires most of them is the old European dream of Big Powerdom, the intoxication of empire-building, of taking part in however small a way in running a Superpower, while simultaneously freeing themselves from democratic control and political accountability to national parliaments and electorates domestically. The pressure for EU integration that culminates in this Constitution comes wholly from the top down, not the bottom up.


The Treaty Establishing a Constitution for Europe has 448 Articles dividedinto four parts. With its Protocols and Declarations it is some 800 pageslong. Following its signing in Rome in October 2004 it will go around forratification by all 25 EU Member States by November 2006. Some 10 countries will hold referendums on it. It cannot legally come into force if any one of them says No.

One of the Declarations states that if all 25 States do not ratify it they will meet to discuss what to do, but there is no legal mechanism for imposing the Constitution on a country that does not want it, or forcing such a country to leave the EU. In theory if 23 States said Yes and two said No, the 23 could set up a new Union based on the proposed Constitution, while the existing 25 would retain the existing EU with its resources, structures, euro-currency and institutions. But two EUs of this kind side by side is quite unrealistic.

The edited text of the Treaty Establishing a Constitution for Europe may be consulted here. The Reader-Friendly Edition of the EU Constitution by Danish MEP Jens-Peter Bonde is the most useful text to enable citizens to understand theConstitution, because of its invaluable Index and Glossary. This is available on the internet here.

Part 1, with 60 Articles, is the core constitutional part. It lays down the Union's general principles, sets out its objectives and values, its Institutions and the respective powers and competences of the EU on the one hand and its Member States on the other. It is clear and readable, even if much longer than the US Constitution. People should take care to read it. Its provisions are short, if deadly for national Constitutions.

Thus Article I-1: "This Constitution establishes the European Union"; Article I-6: "The Constitution shall have primacy over the laws of the Member States."; Article I-7: "The Union shall have legal personality"; Article I-12: "The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence."

Part 2 (54 Articles) is the Charter of Fundamental Rights. For the first time ever this gives the EU Court of Justice power to decide our human rights in all areas covered by EU law. The ECJ in Luxembourg should not be confused with the European Court of Human Rights in Strasbourg, which is not connected to the EU and has over 40 European States as members.

Part 2 is important in that the Constitution could create new rights or take away existing ones. It would supersede our national Constitution, which is clear about rights, as well as the European Court of Human Rights, in areas affected by EU law, whereas the meaning of some of the rights in the Charter is anything but clear - the right to "human dignity" for example, or the right to "good administration".

The inclusion of a human rights code with full legal effect is further evidence that this is a truly Federal Constitution for a new EU. Unless adequately restrained, the doctrine of the legal supremacy of the EU Court of Justice would allow the new EU rights law to displace national provisions in highly sensitive areas of social policy, unrestrained by democratic accountability or control.

Part 3 (322 Articles) is the largest part. It sets out the detailed policies and functioning of the EU - free movement of goods, services, capital and labour; agricultural and fisheries policy; economic and monetary policy; foreign and security policy; crime and justice policy; social policy; EU financing etc. Much of this is already EU law, apart from the new powers the Constitution gives the EU, but the Court of Justice will interpret these provisions as having the force of a constitutional imperative if the Constitution is ratified. That is why the provisions of the Treaty Establishing a Constitution for Europe are more significant than those of a conventional EU treaty.

Part 4 (12 Articles) gives general and final provisions dealing with ratification and amendment of the Constitution, the admission of new Members and provision for a State to leave the EU. It provides for succession by the new European Union to the rights, responsibilities and assets of the existing Union. It carries over the 100,000 pages of the acquis communautaire from the old EU and entrenches the case-law of the ECJ as the source of interpretation for this and for the Constitution.

Protocols: The 36 Protocols or agreements on particular topics attached to the Treaty now become part of the EU Constitution and are as legally binding as its substantive text. They include Ireland's Abortion Protocol (No.31), which generated controversy at the time of the 1992 Maastricht Treaty. They also include the Eurotom Protocol (No.36). The Euratom Treaty, which supports nuclear power, was due to end in 2007 after being in existence 50 years. It is now given an indefinite lease of new life by being made part of the EU Constitution. In addition there are 48 Declarations, which are not legally binding but are statements of political intention by the States making them.



A Treaty is an agreement between legally equal sovereign States, the High Contracting Parties. A Constitution is the fundamental law of a State setting out the relations between its subordinate parts. Up to now the European Union has been a descriptive term referring to various forms of cooperation between the EU Member States, some supranational – the so-called Community "pillar" - some intergovernmental, the foreign policy and security "pillar" or the justice and home affairs "pillar".

Up to now the European Union has been legally indistinguishable from its Member States. The Constitution changes this. Article I-1 states "this Constitution establishes the European Union, on which the Member States confer competences to attain objectives they have in common."

These objectives are set out in Article I-3 and are very wide. They include promoting the EU's values - also very wide - a single market based on free competition, establishing an area of freedom, security and justice without internal frontiers, sustainable development, economic growth, full employment, price stability, social justice, upholding the EU's values and interests vis-a-vis the wider world etc.

Article I-7 provides: "The Union shall have legal personality." Article I-6 lays down: "The Constitution and law adopted by the Institutions of the Unions in exercising competences conferred on it shall have primacy over the law of the Member States" That includes their constitutional law of course. This has never been stated in an EU Treaty before.

The doctrine of EU legal supremacy was developed by the EU Court of Justice in the 1960s in relation to the mainly economic areas of the EU, in which EU law was accepted as superior to national law in any case of conflict. This was the relatively narrow, supranational, area of the European Community, or EC.

Non-economic areas such as foreign and security policy, or civil and criminal law, were "intergovernmental", based on treaties between equal State partners and outside the domain of supranational Community law. The EU Commission, the non-elected body that proposes all EU laws, had no function in these intergovernmental areas.

The Constitution abolishes this distinction between the supranational "Community" area where EU law operated, and the "intergovernmental" areas where it did not apply. It thus brings all government policy either actually or potentially within the scope of the EU. It is one thing for Member States to go along with a principle of EU legal superiority established by the EU Court of Justice and applied to a restricted range of matters like customs duties or tariffs. It is quite another to concede national sovereignty to an EU Constitution whose writ covers everything from economic policy to criminal law to foreign policy and fundamental human rights.


The Constitution gives the EU exclusive competence - i.e. powers – in certain areas of government(Art.I-13). This means the Member States lose all power to decide such matters. "The Union shall have exclusive competence in the following areas: Customs union; competition rules for the internal market; monetary policy (for eurozone members); common fisheriespolicy; common commercial policy."

Exclusive competence means that it is the EU, not Member States, that will conclude international treaties with other States for these areas. The existing legal obligation on Member States is not to enter into an international agreement which conflicts with an EU obligation.

The Constitution now greatly extends the areas in which the EU is entitled to conclude treaties in its own name: "The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or insofar as its conclusion may affect common rules or alter their scope.". This would cover for example international crime conventions and extradition and asylum agreements. Together with the provisions of the Common Foreign and Security Policy, the Constitution would deprive Member States of much of their present treaty-making powers.

Then there are areas of shared competence, where power is divided between the EU Institutions and the Member States. This is a peculiar kind of sharing, for EU power is stated to be constitutionally superior or primary, so that Member State powers are essentially residual and on sufferance.

Article I-12 provides: "The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competences." Areas of shared power with Member States include the internal market, elements of social policy, economic and social cohesion, environment, transport, energy, the area of freedom, security and justice, aspects of public health etc. In jurisdictional disputes as to the boundary between EU powers and Member State powers, it is the EU, through the Court of Justice, that would decide which is which.

A gesture towards placating concerned democrats and "sovereignists" is Article I-11(2), which provides: "Competences not conferred upon the Union in the Constitution remain with the Member States." This is like the 10th Amendment to the US Constitution, adopted in 1791, which states that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

However, the 10th Amendment has not prevented the USA from becoming a fully-fledged and highly centralised Federal State over time, with provincial states like New York, Virginia and Kansas quite subordinate to the Federal Government in Washington. The similar Article in the EU Constitution can offer no such reassurance either.

In addition the Constitution gives the EU the right to coordinate theeconomic and employment policies of its Member States, to conduct a common foreign and security policy covering all areas of foreign policy including "the progressive framing of a common defence policy", and "to take supporting, coordinating or complementary action" at European level vis-a-vis its Member States in relation to industry, health protection, education, vocational training, youth, sport, culture and civil protection.


Apart from the establishment of the European Union as a State in its own right, the most important provision of the Constitution in power-political terms is the shift to a primarily population-based voting system for making EU laws by the Council of Ministers. The Constitution abolishes the weighted voting system that was agreed in the Treaty of Nice to provide for EU enlargement. It lays down instead that EU laws will in future be made by a "double majority" of States and population: 55 percent of the Member States, at least 15, as long as they include 65 percent of the EU's population.

Thus 15 States, if they satisfy the 65 percent population criterion, would be able to outvote 10. On the number-of-States criterion a blocking minority must be at least 11 States, so that will be harder to assemble than before. This shift to a mainly population criterion for EU law-making makes it easier for the Big States with their big populations to get their way. It reduces the relative voting weight of middle-rank and smaller Member States. It would make EU laws easier to pass, which means there would be more of them.

The word EU law" replaces "directive" under the Constitution, as is normal in States.


One-third of the Member States will lose their Commissioners five years after the Constitution comes into force. Thus each Member State will have no national representative for lengthy periods of time on the body that proposes all EU laws which those States and their citizens must obey.


The European Council of Presidents and Prime Ministers will elect a permanent Council President for up to five years, who will preside over their quarterly summit meetings. The present revolving six-monthly EU presidency system will disappear. The European Council President will be the EU's top job, the chief political representative of the EU, in effect its Head of State and chief spokesman to the world.

The EU Minister for Foreign Affairs will conduct the Union's common foreign and security policy, chair the Council of Foreign Ministers, manage the EU diplomatic service (The European External Action Service) and serve also as a Vice-President of the Commission. Only States have Foreign Ministers. For the rest of the world the EU Foreign Minister will be the foreign policy representative of the fledgling EU State. As the Foreign Minister will be appointed by majority vote this will make it possible for some Member States to be represented internationally at EU-level by someone who is unacceptable to them.

There will be a European Public Prosecutor's office to prosecute fraud against the EU, whose powers may be extended by unanimity to prosecute any serious crime with a cross-border dimension.


The "Passerelle" or Bridge Clause:

Article IV-444 provides that the European Council of Presidents and Prime Ministers, acting unanimously, may authorise the Council of Ministers to act by qualified majority in areas where unanimity is currently required.

This cannot be done if a national Parliament objects, but the formal approval of national parliaments is not required. This means that policy areas where States still retain a national veto can henceforth be put under EU majority voting without the need for new treaties, formal parliamentary approval or ratification by popular referendums - as would at present be required for any such development - so long as the Heads of State and Heads of governments of the EU’s member states agree.

Convention Chairman Giscard d'Estaing dubbed this escalator article, the passerelle or bridge clause, "a central innovation" of the EU Constitution. It is not hard to see why. The existence of this and other "passerelle" clauses means in effect that the Constitution will not be a wholly accurate guide to its own provisions.The Flexibility Clause:

In addition there is the "flexibility clause"(Art. I-18) which provides that if the Constitution has not given the EU sufficient powers to attain one of its very wide objectives, the Council of Ministers, acting unanimously "shall adopt the appropriate measures".

This enables the Council of Ministers to extend their own powers without need for new treaties, so long as they act unanimously. This has been widely used over the years for internal market matters. The Constitution replaces an existing treaty article, Number 308, which applies only to the internal market, and extends its scope to everything in the EU Constitution, including civil and criminal law, fundamental rights, social policy, culture etc. This is an extraordinary power to have in a supposedly democratic document.

Delegated Legislation by the Commission:

Article I-36 of the Constitution allows the Council of Ministers to delegate law-making powers, such as making regulations, to the non-elected Commission as regards "non-essential elements" of EU laws. The Council decides what is "non-essential" but it could be very wide.

This turns the EU Commission, a body of nominated, not popularly elected persons, which France's President De Gaulle once described as "a conclave of technocrats without a country responsible to nobody", into a subordinate legislature in its own right, which we all as EU citizens must obey.


The Constitution provides for a unified foreign and military policy for the new EU State. Art.1.40 lays down that "Before undertaking any action on the international sceneŠeach Member State shall consult the others within the European Council or the Council." EU Members are thus constitutionally precluded from conducting a meaningful independent foreign policy.

The Constitution provides that the Union's competence in matters of common foreign and security policy "shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence."(Art.I-16).

It lays down as a constitutional imperative that "Member States shall actively and unreservedly support the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity and shall comply with the Union's actions in that area." The word "loyalty" here again shows which is superior.

Article I-40(3) of the Constitution requires all Member States, including the military neutral ones, to "make civilian and military capabilities available to the Union for the implementation of the common security and defence policy" and to "undertake progressively to improve their military capabilities."

The Constitution points to the end of the formal military neutrality of Ireland, Denmark, Sweden and Austria by replacing the Nice Treaty provision that the progressive framing of a common defence policy "might lead to a common defence, should the European Council so decide" with the provision of the Constitution that it "will lead to a common defence, when the European Council, acting unanimously, so decides."


"Enhanced cooperation", permitting sub-groups of States to use the EU institutions for closer integration amongst themselves may now be undertaken in the security and military area, as was not permitted by the Nice Treaty. Here it is to be called "structured cooperation".

This inner group of States is likely to be bound by a mutual defence pact, will work closely with NATO and will be served by the EU Foreign Minister. The Constitution does not require EU actions in the military field to be in accordance with the United Nations Charter, which is the foundation of modern international law. As a superpower-in-the-making the EU reserves theright to ignore the Charter if need be.


It is proper that the EU and its Institutions should respect and abide by human rights. But should they have the power to decide those rights? Part 2 of the Constitution makes the EU Charter of Fundamental Rights, which was approved as a political document by the Nice summit in 2001, now legally binding in supranational EU law. This gives the Court of Justice power to decide our rights in all areas covered by European law, including Member States when implementing that law. The scope of EU law is now vast and most EU policies can be interpreted as having a human rights dimension.

In disputes as to the boundary between EU law and national law, it is he Court that would decide. This adds a further tier of lawyers and judges t EU level for people seeking redress in human rights cases. Justice delayed is justice denied. Big corporations will find it easier than private citizens to contest claims in the EU Court. This should make the vindication of human rights slower and more difficult in practice.

The Constitution states that the Charter "does not establish any new power or task for the Union." But the EU does not marry anybody, or provide health or education services, or concern itself with matters like reproductive cloning, academic freedom, the rights of children and the elderly, conscientious objection to military service etc.

Why then should it list these and many other things as rights in the Charter when they are wholly outside its powers and functions and up to now have been the exclusive responsibility of Member States with their national Constitutions and Supreme Courts? What is the point of listing them if they are not enforceable?

Neither is there any consensus across Europe on a wide range of human rights matters that could arise in an EU context - for example hard drugs, legal procedures such as trial by jury, displaying religious symbols in schools, marriage, succession law, abortion, euthanasia. How can the ECJ purport to lay down a common cross-EU standard of rights in such sensitive areas?

Article II-112 allows all the rights set out in the Charter to be overridden by providing that they may be limited by law "to meet objectives of general interest recognised by the Union." So the fundamental rights are not so fundamental after all. The conflict between a right and a justification for derogating from it is a highly political matter, in deciding which the Court of Justice would be able to extend its powers further.

The preamble to the Charter states that the fundamental rights listed in it are to be interpreted by reference to the "Explanations" prepared by the Convention that originally drafted it. This means that the ostensible legal meaning of the rights in the Charter may be altered significantly by the Court of Justice in interpreting them, relying on a document drawn up by a different body from that which drafted the Constitution. Article II-62 provides that "no one shall be condemned to the death penalty, or executed."

Yet the associated article of the Explanations lifts this restriction and states that the death penalty may be imposed "in times of war or during the immediate threat of war", presumably for EU-led operations, for all the Member States have abolished the death penalty in such circumstances.

The Charter does not strengthen workers' rights to organise or act collectively, as some have claimed. Article II-88 states that workers have these rights "in accordance with national laws and practices". The associated Explanation, which is now part of the Constitution, emphasises this and points out that the right of collective action is one of the elements of trade union rights laid down in Article 11 the European Convention of Human Rights, which all Member States are already bound by.

In so far as Article II-112 allows fundamental rights to be limited in the interests of the Union, some future ECJ judgement might possibly threaten workers' rights that have been long fought for and established at national level. The Charter as it stands ostensibly protects an employer's right to lock out his employees quite as much as an employee's right to go on strike, depending on what their national labour law lays down.

In truth, making the EU Charter of Rights legally binding under the EU Constitution has more to do with power than rights. Giving a human rights jurisdiction to the EU Court of Justice has huge federalising potential, as the history of the USA has shown. It could potentially bring the Union's Supreme Court, the ECJ, into virtually every area of our lives.


Article I-8 states that "The currency of the Union shall be the euro." If the Constitution is adopted, all EU Members will in effect have voted for and be constitutionally committed to abolishing their national currencies and replacing them with the euro, even though 13 of the present 25 EU Members still retain their national currencies.


The Constitution extends EU powers to make laws that override national law in over 40 new policy areas or matters, in addition to the 35 areas agreed in the 2003 Nice Treaty and the 19 areas in the 1998 Amsterdam Treaty.

Under the Constitution national vetoes disappear for most things. The new areas transferred to the EU include judicial cooperation in criminal and civil matters; harmonisation of legislation on criminal proceedings, sanctions and the definition of offences; border controls; asylum and immigration; civil protection; Europol and Eurojust; energy; culture; services of general interest(i.e.public services); structural and cohesion funds etc. Article I-12 lays down that "Member States shall coordinate their economic and employment policies within arrangements as determined by Part 3, which the Union shall have competence to provide."

This opens the way to extensive economic supervision and coordination powers for the Unionover its Members. It goes well beyond what is possible under the existingEU treaties and could potentially cover such things as taxation policy,national public spending, pensions policy and industrial policy.


The Constitution of any normal State lays down the rules and institutionalframework for political decision-making. It does not seek to pre-empt theideological content of those decisions. That is left to political debatebetween the parties of Left and Right, abiding by the Constitution'sdecision-making rules. The EU Constitution is different. It enshrines aparticular economic system based on an extreme neo-liberal ideology, which it seeks to clamp as a constitutional imperative on 450 million Europeans.

The Constitution turns the fundamental principles of classical laissez-faire, free competition across national and State boundaries on the basis of free movement of goods, services, capital and labour, into constitutional imperatives, implemented by the rules and Institutions it establishes and enforced by the EU Court of Justice. At the same time, the sanction it gives for supranational regulation transfers the corporatist governmental traditions of some countries, e.g. France, to the pan-European level.

The Constitution enshrines as constitutional principle the monetarist economic policy of the European Central Bank, whose sole brief in setting interest rates and controlling the money supply of the eurozone is to ensure stability of prices, not maximise economic growth, foster employment or advance social cohesion. It encourages the privatisation of public services and permits the imposition of such policies on countries outside the EU through the trade and investment agreements the EU concludes under its Common Commercial Policy.

It lays down as one of the objectives of the EU "a highly competitive social market economy", but there is no definition of the term "social market", which is taken from the German Constitution, or anything to indicate that something other than maximising competition is implied. These ideological objectives and values of the Treaty Establishing a Constitution for Europe seek to pre-empt society's fundamental political choices into the indefinite future, as no other modern Constitution seeks to do.



It would be appropriate then to revisit the Laeken Declaration, reconvene the Convention on the Future of Europe on a more democratic basis than Giscard's Convention of EU State-builders which gave us the present undemocratic document, and have a genuine debate among Europe's peoples and parliaments on the kind of Europe people really want.

Almost certainly that is not a Europe which is a State or superpower in its own right, run by a narrow elite of top politicians and bureaucrats, within which the ancient countries of Europe are reduced to the constitutional status of subordinate regions.

It is more likely to be a Europe of cooperating independent democratic States, where powers are repatriated back to the EU Member States from Brussels, as the Laeken Declaration originally mooted but which Giscard's Convention totally ignored. It is likely to be a Europe where national parliaments and voters have their democratic rights restored and where democracy, political self-determination and representative government are re-established for the peoples and nations of our continent.

Democrats all over Europe should say in the coming period: EU ConstitutionNo thanks; No to the EU State Constitution; Yes to democracy.

Richard North 29/10/2004 link

An ol’ fashioned power grab?


Although yesterday's news by the standards of this Blog (we were amused to see that the Telegraph ran the Turkey “adultery” story today, when we ran it in the Blog on Tuesday last), the unprecedented action by the commission in taking the government to the ECJ over the Sellafield nuclear plant in Cumbria cannot pass without comment.

At one level, the facts here are fairly straightforward, although different newspapers seem to be putting different spins on it. The Independent, for instance, reports that the commission is taking Britain to court "over its failure to clean up more than a ton of dangerous radioactive waste" from a tank containing plutonium and uranium, some of which dates from the 1950s.

The Telegraph also takes this line, but the Guardian puts a different light on it. Its Paul Brown reports that, "Doubts about how much plutonium and uranium is contained in a vast waste tank at Sellafield in Cumbria has led the European commission to prosecute the British government for failing to adhere to proper nuclear safeguards".

The commission, according to Brown, "claims that for four years its inspectors have been trying to verify how much material is in the pond so that the UK can be seen to have complied with the non-proliferation treaty, which specifies that the material must not be diverted for bomb-making".

This is in fact the nub of the issue. Under the Euratom Treaty signed in 1957 alongside the Treaty of Rome, to which the UK acceded in 1972, signatories are obliged by virtue of Articles 79 and 82 to keep records of all fissile material, and make installations accessible to Community inspectors in order that they can verify the amounts claimed to be kept.

In the case of the installation at Sellafield, over a ton of plutonium is being kept in a series of tanks in a complex known as B30, but the material has corroded to a highly radio-active sludge, covered by murky water. The mere process of checking, therefore, is dangerous, and there is no easy means of verifying the amount.

Thus, this is not primarily, or even a safety issue and, in fact, the commission has no power to dictate safety standards. The issue, in legal terms, is about record-keeping, and a highly pedantic issue is is. there is no question of the material not being there - just how how much of it there is.

This leaves the mystery as to why the commission is making such a meal of the issue, taking the unprecedented action of referring Britain to the ECJ.

One theory is that the Commission is getting tough because it forced the ten new accession countries to abide by certain commitments relating to nuclear safety and it is anxious to avoid accusations of double standards. This, on its own though, does not seem enough to warrant a full-blown confrontation between the UK and the commission.

Another clue comes from the commission statement made in March when Loyola de Palacio, the Vice-President responsible for Energy and Transport, gave the UK an ultimatum of 1 June to submit an "action plan" which would enable community inspectors to account for the material.

The situation had become "untenable" for the commission, she said. "It calls into question the credibility of our safeguards, which our team of inspectors has been carrying out for fifty years in accordance with very high standards".

In the latest press release, however, de Palacio talks about protecting "the general interests of EU citizens" and also makes reference to “the general strategy for decommissioning the facility in question”, complaining that the UK plan offered to the commission:

does not give any details on particular aspects, such as the granting of the necessary Nuclear Installations Inspectorate (NII) licences and authorisations; nor does it contain either an investment project or an adequate financing plan…
These issues, technically, are entirely outside the commission’s remit, and their inclusion in the justification for taking Britain to the ECJ are thus quite revealing.

What we seem to have here is another of those good ol' fashioned power grabs by the commission. Nuclear safety is a highly emotive issue, and a populist cause which the EU would love to claim for its own. For many years now it has been trying to extend its competences into this field and this case – win or lose – might give it the opportunity of pitching for extra powers.

Moreover – and one must always be alert to this possibility – Sellafield has so long been demonised by anti-nuclear campaigners that action against it by the EU – any action – would serve to reinforce the EU's self-assumed role as protector of the environment.

With the constitutional referendums coming up, this will play big in Ireland - where there are long-standing concerns about the installation - and in the Nordic countries, to say nothing of the German Greens, helping to tilt the balance in favour of a "yes" vote.

Richard North 04/09/2004 link

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