Thursday, 4th March 2010
Post-Lisbon Europe
We have a new Parliament, a new Commission and a new Treaty – the infamous Lisbon Treaty. We have just finished an exhaustive process of interviewing and appointing the President of the European Commissio0n and 26 commissioners. Our system of vetting the new commissioners is in many ways similar to the system they use in America. The United States is a presidential, federal republic, in which the President (the head of state and head of government), Congress, and judiciary share powers reserved to the national government, and the federal government shares sovereignty with the state governments. The executive branch is headed by the President and is independent of the legislature. Legislative power is vested in the two chambers of Congress, the Senate and the House of Representatives.
The European Commission is rather like the US Government. In Brussels, our commissioners are nominated by the Member State governments and vetted and approved by the European Parliament. In Washington the State Secretaries are nominated by the President and vetted and approved by the Senate and the House of Representatives. So although we often complain that the Commissioners are unelected and unaccountable, they are no more so than the powerful leaders of the US government. Indeed our system may be even more democratic. While President Obama will only address the Senate or Congress infrequently on very special occasions, President Barroso comes before the European Parliament monthly.
Lisbon, for the first time establishes a European Union which is constitutionally separate from and superior to its Member States, just as the USA is separate from and superior to its 50 constituent states. The 27 EU Member States thereby lose their character as true, sovereign states. Constitutionally, they become more like regional states in a multinational federation, although they still retain some of the trappings of their former sovereignty. Simultaneously, the 500 million citizens of the EU become for the first time real citizens of the constitutionally new post-Lisbon European Union, with real citizens' rights and duties as compared to the merely notional or symbolic EU citizenship they were assumed to have possessed up to now.
Of course, most Europeans are blissfully unaware of these astonishing changes because, with the exception of the Irish, they have been denied any chance of learning about and debating them in a national referendum. The Lisbon Treaty is therefore a constitutional revolution by stealth.
There is another disturbing aspect to the Lisbon Treaty. The constitutional structure of the post-Lisbon EU is completed by the provision which turns the Council of Prime Ministers and Presidents into an "institution" of the new Union, so that whatever it does will be subject to legal review by the EU Court of Justice. So, in future, the summit meetings of the EU Heads of State will no longer be "intergovernmental" gatherings outside supranational European structures, as they have been up to now.
The European Council will in effect be the Cabinet Government of the post-Lisbon Union. Its individual members will be constitutionally obliged to represent the Union to their Member States as well as their Member States to the Union, with the former function imposing primacy of obligation in the case of any conflict or tension between the two. I would seriously doubt if all of the Heads of State or Government who make up the European Council themselves appreciate this change!
So just as Lisbon has reduced the sovereign powers of our Prime Ministers, it has also created a new and confusing tier of leadership. Our problem now in Europe is that we have more presidents than you can shake a stick at! Under Lisbon we now have a new President of the European Council - Herman Van Rompuy. We also have the President of the European Commission - Jose Manuel Barroso. In addition we have the President of the European Parliament - Jerzy Buzek and just to completely confuse everyone, we also still have the rotating EU presidency which changes every six months and is currently held by Spain. This means that the Spanish Prime Minister - José Luis Rodríguez Zapatero - is also currently in the role of President in Office of the Council of Ministers.
There is a famous story about Henry Kissinger who once said in frustration, who do you phone if you want to speak to Europe? Everyone said the Lisbon Treaty would solve this conundrum. In fact it has made matters worse, because you now have a choice between Barroso, Buzek, Van Rompuy or Zapatero. And believe me, if I find this confusing just think what the average EU citizen must feel about it?
Unfortunately, a gaggle of presidents is not the only problem that has come in the wake of the Lisbon Treaty. The defence implications of the Treaty are very worrying. As we all know, the EU High Representative for Foreign Affairs and Security Policy - Cathy Ashton - will be responsible for developing the EU's Common Security and Defence Policy (CSDP). She will be assisted in this role by the creation of an External Action Service which will see the establishment of EU embassies with ambassadors and a full complement of staff in almost every country in the world.
Baroness Ashton will chair the Foreign Affairs Council, comprising all the Foreign Ministers from the 27 Member States. She will be able to propose CSDP missions and the Council will decide unanimously on their initiation. These missions may include just about any military operation, including anti-terrorist operations, peace-keeping, conflict prevention and even 'peace-making' missions, which is military speak for combat! Baroness Ashton is going to be a very powerful lady! The Lisbon Treaty even includes a Mutual Assistance Clause which states that if a Member State is a victim of armed aggression on its territory, the other Member States are obliged to provide aid and assistance by all means in their power. This is an absolute duplication of Article 5 in the NATO Treaty and further serves to illustrate how the Lisbon Treaty was designed to undermine NATO.
There are also some more positive aspects to the Lisbon Treaty. For instance there is now a mandatory requirement that all legislative proposals coming from the Commission must be communicated simultaneously to the European Parliament and to each of the 27 EU Member States. The Member States will then have a statutory 8 week period during which they can submit their
considered opinions to the EU. No decisions can be taken on any legislative proposal until this statutory consultation has been conducted.
This new Treaty requirement opens up a whole field of subsidiarity which didn't exist before. It means that Member States and interest groups will really be able to have their say on key directives and regulations coming out of Brussels. But in reality, the 8 week consultation period is very tight. Just think how it might work in our case? The Commission will send their legislative proposal to the UK government at Westminster. The relevant Department at Whitehall will then examine the proposal and if it deals with one of the devolved subjects like agriculture or fisheries, they will send it on to Holyrood, Cardiff or Stormont. The devolved parliaments or Assemblies will then scrutinise it in committee and perhaps even consult with stakeholders like the trades unions, chambers of commerce, NFU or fishermen's associations. Can all of this be achieved within 8 weeks? I doubt it!
Clearly we need to set up a new streamlined system of consultation if the UK is to make full use of this new subsidiarity principle and get the most out of Lisbon. We need teams of civil servants watching what is coming over the horizon, so that the wider stakeholder consultation on pending legislative proposals can be conducted long before the 8 week formal consultation process begins. There is one thing for sure....we need to have a much better co-ordination between our MPs, MSPs and MEPs to ensure that we get the maximum benefit from the Lisbon Treaty and don't become Europe's losers.
I am also glad to see that David Cameron has decided to take a leaf out of Germany’s book with regard to the question of sovereignty. Believe it or not, we may yet owe our salvation to the ruling of Germany's highest constitutional court. The German constitutional court in Karlsruhe took a long hard look at the Lisbon Treaty and back in June last year, while our attention was diverted by the Westminster expenses scandal and the European elections, they ruled that the German President could not sign the Treaty until the Bundestag had passed a specific act re-affirming German pre-eminence over Europe.
This robust and un-compromising judgement stated unequivocally that the German courts must always take precedence over the European courts, that the German Parliament must always take precedence over the European Parliament and that basically, when it comes to the EU, Germany must always come first. This Karlsruhe interpretation of the Treaty very eloquently demolished the old idea that EU law and EU decision take priority over all the Member States. It was almost like a declaration of war on the Lisbon Treaty.
In fact the German judges went on to explain that in their view the European Parliament is terminally undemocratic and therefore cannot be allowed to take decisions on behalf of the citizens of Europe. Their reasoning was simple. It only takes 67,000 Maltese to elect an MEP, whereas it takes 455,000 Swedes and 857,000 Germans....which is roughly about the same number as it takes to elect an MEP in Scotland, by the way.
All of this, as you can imagine, has come as a bit of a political bombshell to the Euro elite. The last place they expected to have their pet project derailed was Germany. So David Cameron has now announced that a new Conservative administration at Westminster will propose a Sovereignty Bill which will mirror exactly what the German Constitution Court has recommended. In this way, we will re-assert the pre-eminence of Westminster over Brussels and even seek to claw back sovereignty in key areas such as the Social Chapter. A Sovereignty Bill would also include a clause requiring the approval of the British electorate in a referendum before any legislation is introduced which would seek to increase the functions of the EU in a way that would affect the UK.
I see this as a brilliant and decisive move which throws the weight of our legal establishment behind the primary need to define the ultimate sovereignty of our parliament over that of the EU institutions. And for those who say this will not be possible because the European Union now controls Britain and we cannot escape from treaty obligations which previous governments signed up to I say two things:
Firstly, some of the UK’s leading constitutional experts have said that a Sovereignty Bill would be legally watertight. Secondly, as one of the biggest contributors to the EU budget, the UK will always be in a strong position to argue for whatever we wish. David Cameron’s Sovereignty Bill is right, it is in the public interest, it is necessary to re-establish democracy for our deteriorating parliament at Westminster and the British people have every right to demand it from their MPs at the next General Election.
