The Charter of Fundamental Rights: It's alive!

Today’s ECJ ruling on insurance premiums, which will mean insurers can no longer offer different products and prices to men and women based on their sex from December 2012 (since that constitutes discrimination in the ECJ's eyes), has thrown up an interesting discussion about the Lisbon’s Treaty Charter of Fundamental Rights. It has passed under the radar of the media, which understandably have focused on the consumer angle.

The discussion on the Charter could appear boring but it’s actually very important.

This is because the UK negotiated a protocol on the Charter when the Lisbon Treaty was agreed, amid concerns that the Charter would take on a life of its own and impact on British rights legislation in ways that were deemed disproportionate or detrimental, either directly or indirectly. In fact, the protocol was one of the reasons cited by the previous government in support of not giving people a referendum on the Lisbon Treaty.

The Protocol states that the Charter “does not extend” the ability of the ECJ to find that UK law is inconsistent with the rights and principles elucidated in the Charter. Originally, the UK Government claimed to have an ‘opt-out’ from the Charter, but this was never accurate. Indeed then Europe Minister Jim Murphy eventually admitted: “It is clear that the UK does not have an opt-out on the Charter of Fundamental Rights.”

That’s history, unfortunately, but what isn’t history is today’s ruling. It’s clear that the ruling bases a significant chunk of its reasoning on the Charter of Fundamental Rights. It’s also clear that the ruling will have direct impact on the UK. In fact, the ruling will have a disproportionately large impact on the UK given that Britain is home to Europe’s largest insurance industry.

But despite drawing heavily from the Charter, there are no references to opt-outs for the UK in the ECJ’s ruling, or protocols or anything else. None.

And just to set this straight – in the ruling, the ECJ does base its reasoning on the Charter. The 2004 Gender Directive is the main driving force, but the Charter provides plenty of ammunition as well. Over on his Economist blog, Bagehot claims that we’re “not quite correct to say that the ruling was based on the Charter of Fundamental Rights, from which Britain supposedly has an opt-out. The court instead looked at a 2004 Gender Directive...”

This is just wrong. Looking at the full text of the ruling, it becomes clear that the ECJ rules that the insurance industry’s derogation from the Gender Directive is incompatible with both the spirit of the Directive itself AND articles 21 (non-discrimination) and 23 (equality between men and women) of the Charter of Fundamental Rights. Clauses 17 and 32 of the ruling put this beyond doubt:

“17. Articles 21 and 23 of the Charter state, respectively, that any discrimination based on sex is prohibited and that equality between men and women must be ensured in all areas. Since recital 4 to Directive 2004/113 expressly refers to Articles 21 and 23 of the Charter, the validity of Article 5(2) of that directive must be assessed in the light of those provisions (see, to that effect, Joined Cases C 92/09 and C 93/09 Volker und Markus Schecke and Eifert [2010] ECR I 0000, paragraph 46).”

And,

“32 Such a provision, which enables the Member States in question to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits, works against the achievement of the objective of equal treatment between men and women, which is the purpose of Directive 2004/113, and is incompatible with Articles 21 and 23 of the Charter.”

Now, we can argue about whether the Charter is creating "new legal rights" or is in fact the ultimate basis of the ruling (as opposed to the Gender Directive) . But this only shows why the UK's protocol on the Charter never was credible. Anyone who can read can see for himself that the Charter is inspiring the ECJ to rule the way it does on gender-based insurance premiums - which in turn has a huge impact on the UK.

In other words, the Charter is alive and well - also in Britain.

Combining everything that is wrong with the EU's judicial system

Over on Conservative Home, we take a look at today's ECJ ruling on insurance premiums, we argue:

This morning, the European Court of Justice ruled to scrap the insurance industry's opt-out from the EU's 2004 Gender Directive, which will mean insurers can no longer offer different products and prices to men and women based on their sex from December 2012.

This may appear like an everyday consumer story, but it's not. In fact, it's difficult to find an example which better illustrates why EU judges need to be reined in and David Cameron needs to revisit his election promise to limit the jurisdiction of the ECJ and the application of the Charter of Fundamental Rights, entailed in the infamous Lisbon Treaty.

Of the two European courts - the ECJ in Luxembourg and the European Court of Human Rights in Strasbourg (ECHR) - the former is clearly the one with the most influence. On occasion, the ECHR rules on highly symbolic and emotionally charged issues such as prisoners' right to vote - rulings which rightly get a lot of attention. But the influence of the ECJ creeps in to a whole range of areas, striking deep into British society and the economy, from working time for junior doctors to the governance of the UK's most important national industry - the City of London.

The ECJ's ruling this morning combines virtually everything that is wrong with the EU's judicial system. And there's a lot going on. Here goes:

Unnecessary cost of EU laws to individual consumers: Open Europe estimates that the insurance industry will have to raise nearly £1 billion extra to cover itself against the uncertainties created by the ruling - a large chunk of which is likely to be passed on to individual consumers. Moreover, taking motor insurance as an example, a 17 year old female driver will now have to pay an extra £4,300 in insurance premiums by the time she reaches the age of 26 as a consequence of the ruling. In a worst case scenario, women drivers' cumulative insurance costs between the ages of 17 and 26 could increase by as much as £9,300. Young male drivers would on average save an estimated £3,250 over the same period of time (despite displaying riskier behaviour behind the wheel), but the cost to consumers taken as a whole will clearly increase (and men will in turn lose out on their pensions, as a consequence of the ruling).

The unintended consequences of EU laws: Just as was the case with the Working Time Directive - which the ECJ has extended on eight separate occasions, imposing a huge cost on the NHS and the UK economy - the ruling shows how an EU law can change in the most unpredictable way after the UK government has signed up to it (lesson: don't sign up to EU laws without first thinking through all possible unintended consequences).

The EU's endemic democratic deficit: No one in the UK ever objected to the practice of charging men and women different insurance premiums, not individuals, not consumer groups, not UK judges and certainly not democratically elected MPs. And yet, this practice has been scrapped by judges that no one ever voted for, based on a case brought before the courts in a different country (Belgium).

Human rights legislation out of control: The ECJ argued that using gender to differentiate between male and female insurance policies is in violation of EU law on human rights, meaning that despite the fact that roughly 95% of driving offences causing death or injury are committed by young men, the judges could rule that - perversely - taking such evidence into account violates young men's rights. Is this really what human rights law should be about?

The blurring of the line between the ECJ, the Commission and the ECHR: In its ruling, the ECJ made references to both the European Convention on Human Rights, overseen by the Council of Europe (and not an EU institution) and the EU's Charter of Fundamental Rights. This sounds techy, but illustrates the complex web of European human rights law that is now in the hands of European judges at both the Council of Europe's ECHR in Strasbourg and the EU's ECJ in Luxembourg.

In other words, the case law of the ECJ and the ECHR is becoming progressively more blurred as EU judges continually make references to the European Convention on Human Rights in their rulings. In a lecture last year, the Lord Chief of Justice Lord Judge noted that, "The [EU's] European Court of Justice is beginning to acquire jurisdiction over matters that would normally be regarded as matters not for Luxembourg but for Strasbourg." This hugely confusing fudge raises a range of questions about accountability.

The UK government does NOT have an opt-out from the Lisbon Treaty's Charter of Fundamental Rights: Do you remember the claims that the UK had won an "opt-out" from the Lisbon Treaty's Charter of Fundamental Rights (supposedly one of the Labour Government's "red lines" on the Lisbon Treaty and an alleged reason why the promised referendum wasn't called)? Well, as we've argued again and again, there never was such an opt-out and this case clearly illustrates why. The Court draws heavily from the Charter in its ruling - and there's no question whatsoever of the UK not being affected by it. In fact, it impacts on the UK the most, as it is home to Europe's largest insurance industry.

The Conservative election manifesto promised to negotiate a firm opt-out from the Charter before Coalition politics became one of the new realities of life. It also promised to tackle virtually all the other problems so clearly illustrated by this ruling. The Coalition has taken some positive steps on EU reform, but how much longer can they dodge this key issue?

Lib Dems abstained on Lisbon Treaty referendum because they thought it "would fail"

One of the latest leaked US diplomatic cables has confirmed what many of us had suspected all along. The Lib Dems' U-turn on their pledge to hold a referendum on the Lisbon Treaty was not motivated by a principled preference for an 'in or out' referendum on EU membership but by a belief that a referendum on Lisbon would be lost.

Here's the relevant passage:

A Very Bad Day: The Lib Dems and The EU Reform Treaty

--------------------------------------------- ---------

2. (SBU) March 5 marked the worst day for the Lib Dems since one infamous week in January 2006, when the party became the laughing stock of Britain after sex scandals involving two of the four candidates to succeed leader Charles Kennedy emerged one right after the other. This time around, the party imploded in the House of Commons over a Conservative Party motion to hold a nationwide referendum on the Lisbon Treaty. The Lib Dems' convoluted official position on the referendum was part of the problem. As Clegg sought to explain it to the public, the real issue for his intensely pro-Europe rank-and-file was not the Lisbon Treaty itself, but confirming UK membership in the EU once and for all. The Lib Dem official position therefore was to propose an alternate "in or out" referendum on whether the UK should remain in the EU, and abstain on the competing Conservative motion to hold a referendum on just the Treaty itself.

3. (C/NF) This position left both the pundits and the public scratching their heads: why would the UK's most pro-Europe party, whose new leader actually worked for the EU from 1994 to 1999, abstain on a vote on the Treaty? The answer, senior Lib Dems have confessed to us, is that the party leadership believes a referendum on the Lisbon Treaty would fail.

Hmmm, we kind of suspected that was the motive. Or, actually, it was blatantly obvious as the Lib Dems flip-flopped like crazy on the Lisbon Treaty.

All of this brings back some horrible memories...

Merkel refuses to fold

German Chancellor Angela Merkel is a tough cookie.

Sandwiched between Deauville and tomorrow's EU Summit, Dr. Merkel took to the podium today to defend the controversial pact with President Sarkozy on economic governance in the eurozone that has left both German politicans and EU leaders incensed (but in different ways).

Addressing the Bundestag this afternoon, a firm Merkel said both President Sarkozy and herself will relentlessly insist on a "culture of stability" at tomorrow's European Council summit. She stressed the necessity of taking "precautions today for dealing with future crises" in the eurozone.

Such precautions, she said, will simply have to include a Treaty change. Merkel stated that the measures taken earlier in the year to bail out Greece were "unavoidable" but did not provide long-term solutions. She insisted on a new, robust and legally unassailable "crisis management framework" anchored firmly in a new EU treaty; a move that she admitted is "ambitious". But she confidently asserted that, for the EU

success will only come with a change to the treaty...improvement is always possible, even if the road is rocky.

Presumably responding to Luxembourgish Foreign Minister Asselborn's and others' sneer that Europe does not work with only a "two-stroke engine", the German chancellor said, "the Franco-German union is not everything in the EU, but, without a German and French union, it is not much."

Tomorrow's summit could be really interesting...

A one-year cash freeze to EU budget won't cut it Mr. Cameron

The news in today's Guardian and Mail is that David Cameron is thinking of doing a deal on the proposed new EU treaty. The reports suggest that Cameron will back the new treaty in return for his demands for a cash freeze to the 2011 budget.

We're not convinced that Treaty-change-for-less-cash is a line that the Government will pursue in the end. But if true, Cameron and his Government risk a mutiny not only from the Tory backbenches but the public at large. And it would be completely justified.

The prospect of a new treaty is rightly seen (and not just by us) as a once in a generation opportunity to renegotiate the UK's relationship with the EU and actually repatriate some of the powers the Conservatives promised they would less than a year ago, or pursue a number of other reforms - for example giving real powers over EU policy to national parliaments.

A one-year cash freeze on the EU budget simply doesn't cut it. Sure, the European Parliament's demands for a 6 percent increase are outrageous and have understandably attracted the headlines recently. But what about 2012 and 2013? There is nothing stopping MEPs, the Commission or even other member states demanding similar increases in these years and there would be little the UK could do about it.

And even the next EU budget period, the the one that starts in 2014, is best negotiated seperately. The UK already has its rebate as leverage in those negotiations. Making horse-trades involving Treaty changes is giving EU partners a 'two for the price of one' deal.

But besides this practical reason, the prospect of yet another 'behind closed doors' EU deal could be politically disastrous. After promising to repatriate powers, Cameron cannot shirk the first, and possibly only, realistic opportunity to do so.

It would certainly make his accusations of "betrayal", levelled at Labour and the Lib Dems for their backtracking on a referendum on Lisbon, look pretty hypocritical.

Commons weighs in on deposit schemes

Hats off to the House of Commons.

Earlier today it grasped the nettle and employed the Lisbon Treaty's 'yellow card' procedure for the first time (if nine national parliaments object to a proposal from the Commission on 'subsidiarity' grounds, within an eight-week window, the Commission is obliged to re-consider - but not scrap - the proposal). The House of Lords was slightly quicker off the blocks, using the procedure last week to object to the EU's proposed directive on seasonal workers from third countries.

The Commons provided a "reasoned opinion" on the proposal to amend the so-called Investor Compensation Schemes Directive, objecting to it on subsidiarity grounds.

As we've argued before, this proposal raises various concerns, as under the proposed rules member states would be required to lend to each other should a bank go bust and deposits needed to be guaranteed. As the Swedish Parliament argued, this presents a 'moral hazard' since some member states might be tempted to under-fund their scheme, knowing that someone else would pick up the final bill.

The House of Commons joined its counterparts in Sweden, Germany and Austria in objecting to the proposal.

Only problem is, the deadline for objecting to the proposal expires today. Eight weeks doesn't exactly give national parliaments plenty of time to mobilise, particularly when, as it did now, it coincides with parliamentary recess in most European countries (almost as if it was planned).

We confess to not being up to speed with how many national parliaments actually managed to formally object to the proposal in the end - but will be back shortly with an update.

Regardless, it's good to see MPs taking responsibility.

Illusionary democracy?

We've looked at this issue before, but the Swedish Parliament, the Riksdag, yesterday supported its finance committee in protesting against the Commission's proposed amendments to the Deposit Guarantee Schemes Directive, which would oblige member states to transfer money to another member state's deposit scheme, if that scheme had run out of money. The Riksdag said this would create a moral hazard, as some countries could be tempted to under-fund their schemes, knowing that someone else would ultimately pick up the bill. The German Bundesrat has also objected to the proposal and today the lower house in Germany, the Bundestag, will give its opinion on whether it will formally object to the amended Directive.

This is the first time that national parliaments have tried to use their new 'powers' entailed in the Lisbon Treaty. The Treaty gives parliaments the right to oblige the Commission to re-consider - but not scrap - a proposal, if a third of national parliaments object to the proposed legislation on subsidiarity grounds, within an eight week window. As even Andrew Duff - the liberal MEP who has been a staunch defender of the Lisbon Treaty - has admitted, the Lisbon provision on national parliaments was never intended to be used in practice as it's very difficult to get nine parliaments to debate and then object to a piece of legislation within such a narrow time period as eight weeks.

And the task of getting nine parliaments on board looks very tricky indeed. The deadline for national parliaments to object to the Deposit Guarantee Schemes Directive is 25 October, and according to the "Interparliamentary EU information Exchange" so far only six parliaments have even begun scrutinising the proposal. Typically, the eight week period comes smack in the middle of parliamentary recesses in most countries, making the task even more difficult (although the Commission generously discounted August from the period).

It's hard not to see this provision as mere illusionary democracy, which the EU elite inserted into the Lisbon Treaty to be able to make the case that 'everyone wins'. But still, it's good that national parliaments are giving it a shot.

Surely, the UK Parliament should object too, given that the reservations concern moral hazard, transfer of funds between member states and subsidiarity?

"Europe at 27 is doomed to failure"

Pretty bleak stuff from former French Prime Minister Edouard Balladur in today's Le Monde:

Europe at 27 is doomed to confusion and failure. It suffers from problems that the Lisbon Treaty has failed to correct. Lack of authority: the 1950s structure, with the [European] Parliament, the Commission and the European Council, being too heavy. We will witness conflicts between the Parliament-Commission duo and the European Council in the future. Lack of realism: the 4 or 5 countries representing the 2/3 or the 3/4 of Europe's population and wealth have indeed special responsibilities. Lack of coherence: the 27 member states have very different social and juridical regimes. We pay the price of an enlargement which was decided too hurriedly.

So the Lisbon Treaty didn't fix all this? What a shocking revelation!

This could be interesting

Do you remember all that talk about how national parliaments would be strenghtened under the Lisbon Treaty (something which the pro-Lisbon camp continuously banged on about, presenting it as a 'fact', when in reality it's anything but)?

We've looked at what post-Lisbon life is like for national parliaments many times before (and it ain't that pretty), but it now appears that national parliaments' "new powers" to challenge proposals from the Commission are being tested for the first time.

The Lisbon Treaty says that, in the event that a third of national parliaments - that's 9 - get together to oppose their governments on a piece of legislation, on the specific grounds of 'subsidiarity', and within an 8-week window, then the legislation would have to be reviewed, following which, it would be open to the institution which originated the proposal to choose whether to maintain, amend or withdraw the proposal.

Hardly practical. But the Swedish Parliament (the Riksdag) is determined to give it a try. The Treasury Committee of the Riksdag has raised objections against the Commission's proposed amendments to the Deposit Guarantee Schemes Directive. Under the amended Directive, deposit guarantee schemes must offer depositors up to €50,000, if their bank collapses. The schemes are to be 75 percent pre-funded from bank contributions, with the remainder coming from other sources. However, the Riksdag's Treasury Committee is opposed to a provision in the Commission's proposal which could see Sweden (or any other member state) being forced to lend money to other member states' funds, if these funds face a shortfall in cash.

The Riksdag, going against the Swedish government, said that such mandatory lending could lead to some member states under-funding their deposit schemes, knowing that someone else would be lender of last resort. It also argued that the provision represents a violation of the EU's subsidiarity principle. The Riksdag will now seek to spread the word amongst other parliaments in a bid to get the Commission to reconsider the proposal.

One tiny problem: many national parliaments around Europe are on recess at the moment - including the UK's. To muster the support of an additional eight will be a difficult task indeed.

This is one to watch.

Obama to meet with the EU's various Presidents after all

Looks like U.S. President Barack Obama will meet with his "European counterparts" (at least in terms of pay, they're on par), Commission president Jose Manuel Barroso and the President of the European Council Herman Van Rompuy, after all. A NATO summit in Lisbon on 20 November will be used to make up for the Obama Snub earlier this year.

"Presidents Van Rompuy and Barroso are looking forward to this opportunity to meet again with President Obama to reaffirm the transatlantic agenda and advance EU-U.S. cooperation on issues of mutual concern," the Commission said today.

Now, the big question is: who will get the opportunity to shake the great man's hand first?

EU subsidised travel? The next step in a Summer's dream

The glorious weather in London today has reminded us of a story we noted last month - but have not yet had a chance to share here :-)

In these rather gloomy (except today) and dark times of recession and gloom, what could be more uplifting than a holiday, to an exotic destination within the EU, subsidised by the European Union. Sounds great huh? Well, perhaps it's not so uplifting or great when we consider where the cash will actually come from - our less than exotic taxes.

It may strike many as a rather strange ‘initiative’ for the EU to introduce when we consider that most member states are presently stuck in a debt trap deeper than the Spanish caves of Drach. But no, as ridiculous as it sounds, this isn’t a joke. Under the Lisbon Treaty, tourism was brought in as a new EU competence with the aim of boosting the industry.

However, rather predictably, Eurocrats have used the opportunity to exercise their somewhat ‘backward’ understanding of economic theory. Deciding that, rather than stimulating demand for tourism, they will instead create supply. Last month at the European Tourism Stakeholders’ Conference, the Vice-President, Antonio Tajani, announced that “taking holidays is a right”, saying that:

“our unrivalled tourism resources must become fully accessible to those for whom travelling is difficult: the elderly and persons with reduced mobility…young persons and families at a disadvantage who – for various reasons – also face difficulties in exercising their full right to tourism”.

In particular, subsidies would be given for the disadvantaged to travel during the low season to encourage year round tourism flows.

Aside from the economic illiteracy of the ‘initiative’, some may be confused as to why Brussels would champion the right of tourism for all when fighting climate change, through reducing carbon emissions and introducing carbon taxes, is heralded to be a key EU priority. In fact, the EU already pays out for a variety of campaigns urging us to "travel responsibly" such as the You Control Climate Change! and Climate Action schemes.

Of course, this contradictory behaviour is par for the European course. Many will remember the controversial junket taken in March this year when 250 delegates (including 68 members of the European Parliament) jetted off to sunny Tenerife to discuss a variety of issues including the environment and sustainable tourism.

One reason to oppose a Lib/Con coalition

For all the talk now of the Lib Dems as the kingmakers, wooed by both Labour and the Tories for their 60-odd votes, it is possible to forget that Nick Clegg is not some shiny, unblemished debutante, but a seasoned politician with his own electoral baggage that could throw up sticking points with both Tory and Labour backbenchers (should Con-Lib coalition talks end in much ado about nothing). Indeed, if there is one reason for the Conservatives to turn around and attempt to go it alone with a minority Government, it’s the Lib Dems’ appalling record on whether British voters should be given the referendum they were promised on the Lisbon Treaty.

The expression ‘flip-flopping’ doesn’t even begin to describe Nick Clegg’s behaviour when the issue was on the table in 2008 (see here for our reaction at the time).

Let us re-cap:

The Lib Dems, just like Labour and the Tories, promised in their 2005 election manifesto to put the European Constitution to a public vote. In 2007, in a bid to circumvent the No votes in the Netherlands and France, the EU Constitution was renamed the Lisbon Treaty and articles were recast, but the content remained virtually identical.

A bill to put the Lisbon Treaty/EU Constitution to a referendum went through the Commons in March 2008 (after the Commons debate on the Treaty was cut short). While most Labour MPs voted against a referendum, and most Conservatives voted in favour, Nick Clegg ordered his MPs to abstain on the vote, insisting that the Lib Dems were instead in favour of a referendum on the UK’s continued membership of the EU. Three frontbench Lib Dem MPs were forced to resign because they felt bound by their election promise and decided to defy Clegg by voting in favour of a referendum on the Lisbon Treaty.

After the failure of the referendum amendment in the Commons, Nick Clegg continued to insist that his party was committed to the idea of a referendum on Britain’s continued membership of the EU. He said : “I argued for an In-Out referendum – and have done so for years – because I am convinced it is the right thing for Britain”.

However, the Lib Dems tabled no amendment to that effect when the issue was discussed in the Lords a few months later, and actually abstained from voting for an in/out referendum when such an amendment was put down, and instead voted in favour of the Lisbon Treaty. If the Lib Dems had abstained, like they did in the Commons, the referendum would have been passed.

With the Lisbon Treaty ratified in all member states, the in/out referendum pledge then appeared to have been dropped, with former party leader Sir Menzies Campbell saying in December 2009 that there was "no public appetite" for such a vote since the Lisbon Treaty was now in force. However, the pledge then re-appeared in party’s election manifesto.

Absolutely extraordinary. Perhaps we have too high expectations, but should politicians – particularly those who profess to want to ‘clean up politics’ and reconnect with voters – really get away with this kind of schizophrenic behaviour, which leaves voters wondering exactly where they stand on their manifesto pledges?

If we can put aside any potential uncertainty in having a less-than-secure minority Government in place for at least a year and that is a big If – (for injecting confidence in the economy and for the ability of the UK to influence what’s happening in Brussels at the moment), this would be as good a reason as any for David Cameron to go it alone – not least since a key challenge for MPs over the life of the next Parliament is to be able to restore trust in politics.

Footnote:

On a similar, but distinct, question of referendum promises, Nick Clegg spent last week doing some serious backpedalling in a bid to try and distance his party from their pledge to join the euro, which they featured slap band in the middle of their election manifesto.

On Jeremy Vine’s Radio 2 show last week, Nick Clegg couldn’t have distanced himself from all of his previous talk of the benefits of ‘anchoring’ our currency to the euro any faster. When asked by Vine: “Of course, but just to bring you back as it is quite important this – because you did want us in the single currency in 2003, and the other two didn’t, and you don’t want us in now, and so I’m just checking that you accept you’ve changed your mind”, Clegg said:

“No, let me be clear – in the 2005 General Election, which was the general election which counts, we did not recommend, as we’re not recommending now, that we should go into the euro. We are saying that there may be economic circumstances, and by the way the Labour government under Gordon Brown’s tests has said something very similar, there may be circumstances where you can imagine that might be the case. It’s not for now, we’re not recommending it for now, we would only ever recommend it if it was good for the British economy, not out of sentiment, because it’s good for savings and jobs and so on.”

Quite clearly “there may be circumstances where you can imagine that might be the case”, is not the most ringing endorsement for joining the single currency ever to pass one’s lips, and yet their official position remains that joining the euro is in the long term interests of the UK? Perhaps the events of the weekend may be enough to convince some of them that such a scenario would never come to pass.

If only it was true...

The dilemma thrown up by a hung parliament will obviously remain the main focus of British politics for some time. We will certainly return to what the result means for the UK's relationship with the rest of Europe as possible government arrangements become clearer.

In the meantime, the TaxPayers Alliance sparked some hope the other day by suggesting that we may get our promised referendum on the Lisbon Treaty after all that, since the Treaty would need ‘re-ratification’ to accommodate for some additional MEPs - the so-called 'ghost MEPs'. They wrote:

Due to various procedural changes, the Lisbon Treaty is going to have to be ratified by Parliament yet again after the General Election. David Cameron has always been explicit that had he been Prime Minister when the Treaty came forward for ratification, he would have held a referendum. Until now that has simply been a hypothetical situation – but now it is set to become a reality.

However, even before considering the complexity added to this question by the possible deal the Tories will strike with the Lib-Dems, this is very much a case of something being ‘too good to be true’ .

Having campaigned tirelessly over the years for a referendum on the EU Constitution/Lisbon Treaty we would love to share the TPA's optimism. But a referendum on this amendment to the Lisbon Treaty is, sadly, a non-starter - although the TPA does make several important points that the Conservatives should take on board.

The TPA’s latest post on the subject cites the Lisbon Treaty's 'passerelle clause' and a 'Foreign Office confirmation' that an amended Treaty would require Parliamentary approval, but this over-complicates something that is actually fairly simple – even if the UK were to hold a referendum on an amendment to the Lisbon Treaty, it wouldn’t in any way unpick the Treaty itself. Let us explain:

Several member states want to amend the Treaty in order to allow an extra 18 MEPs to take their seats in the European Parliament. Lisbon provides for 754 MEPs but, because Lisbon had not been ratified before the European elections last year, only 736 were elected as per the rules of the previous Nice Treaty.

The need for treaty change is a consequence of the further complication that the new rules would require three German MEPs voted in under Nice to give up their seats. So the proposed solution is to change the Lisbon Treaty in order to allow the three German MEPs to remain in their seats for the rest of the term and allow the 18 new 'Lisbon' MEPs, including one from the UK, to take their seats.

The TPA are absolutely right to point out that the treaty change requires unanimity - i.e. the UK has a veto - and that Parliament will need to ratify the amended Treaty.

The desire for a referendum is completely understandable, given Gordon Brown’s and Nick Clegg’s shameful broken promises to give the people a say on this Treaty. However, a referendum on an 'amended Lisbon Treaty' would be almost completely meaningless as it would not change the fact that the Treaty as it currently stands is already ratified in the UK and throughout the EU. It would therefore only be a referendum on whether the 18 extra MEPs, including one British MEP, take their seats before the end of the current term, it would not repeal the existing Treaty.

It is simply not credible to ask an incoming British Government to call a referendum on whether to send one more MEP to Brussels – and for a potential Cameron government it’s even more unreasonable given that the extra MEP would be a Tory.

It could be argued that this presents an early opportunity to call for the renegotiation of powers, which David Cameron outlined last year, but the ghost MEP amendment is actually of very little worth as a bargaining chip, since if the changes are not agreed they will automatically go ahead after the next European elections in four years time.

But the TPA is right in principle that the Tories, if managing to form a government, should seek to use Treaty amendments or other changes to their advantage (provided that they constitute genuine bargaining tools). There are plenty of things in the pipeline where a Conservative government could use its veto to get the things it wants. For example, there may well be treaty changes to incorporate new rules for the eurozone - something certain countries will badly want and for which the UK would be well within its rights to exact a price. Or the potential creation of a European Monetary Fund, which would be a clear step towards EU fiscal federalism. Other examples include a potential Croatian accession treaty and the upcoming EU budget negotiations.

We would never discourage people from debating the significant impacts of the Lisbon Treaty, and the undemocratic way in which it came to pass, but moving forward, we should turn our attention to the many future opportunities that the next Government will have to reform the UK's relationship with the EU, reducing the wastefulness of the budget and repatriating powers that are best exercised nationally rather than from Brussels. In the context of a crumbling eurozone and the tangible mood of disenchantment with the EU around Europe, a determined British Government should indeed capitalise on future Treaty changes and find strong allies for returning powers to the Member States. But any tactic for radical EU reform must be strategic, carefully thought through and well-timed. 18 ghost MEPs, regrettably, is not the answer.

What would a Lib Dem government do about Ian Bailey?

The Lib Dems' recent rise is rightly leading to closer scrutiny of the party's policies. Their support for the UK entering the euro, was correctly described as "folly" by the Sunday Times. If it wasn't right to join the euro when the UK was experiencing higher growth in comparison to the eurozone, and if you're willing to admit that the current eurozone interest rates would have hurt the UK's recovery (as Clegg has recently), then when would it ever be right to join? The Lib Dems' answer, "In the long-term", is simply not good enough from a party that wants to govern the country.

But another area that has received far less scrutiny and attention is the Lib Dems' commitment to further EU cooperation on crime, justice and policing. This is extremely important because, under Lisbon, this is the area of EU policymaking that is likely to grow fastest. And for a practical example of why this is all important, we need look no further than a story reported in yesterday's Independent, and today in the Irish Times.

Ian Bailey, a British former journalist suspected in connection, but not charged, with the murder of a French film-maker in Ireland 14 years ago, has been detained by the Irish authorities under a European Arrest Warrant issued by a French judge. French lawyers argue that they have jurisdiction over the case, citing the French constitution which states that murder cases involving French citizens in any part of the world can be brought in front of French courts.

But, as Carol Coulter, the Irish Times' legal editor, points out, the Irish Director of Public Prosecutions decided not to prosecute Bailey for the murder. Therefore, in practice, the French extradition request amounts to a breach of the double jeopordy principle, enshrined in the European Convention on Human Rights (ECHR), as well as the Irish Constitution.

We've pointed out some of the EAW's failings before, but this case could potentially prove to be a huge step in a very dangerous direction. If Bailey loses his fight against extradition, the Irish authorities will have deported someone, whom they believe did not have a case to answer under Irish law, to face charges in another country. Leaving aside whether Bailey is ever found guilty or not in the future, this simply cannot be right.

The Irish courts still have to decide whether to action the extradition request but it will be interesting to see how much pressure is put on them by the French government. And given that the French request effectively amounts to a vote of no confidence in the Irish legal and judicial system, what prospect does this man have for a fair trial in France? And doesn't the UK, given that Bailey is a British citizen, have a duty to point this out?

Would you trust this Miliband?

With the election only two weeks away now the country has turned poll-crazy as we rate the stars, ahem, politicians with every twist and turn of the election horse track.

The latest intrigue from the poll-vine comes from an interesting study released in yesterday’s FT, by market research firm Harris International. It reveals that David Miliband is one of the least trusted politicians in the UK, with a whopping 38 percent of people saying that they ‘distrust’ him in contrast to the scant 12 percent who ‘trust’ him.

The surprise must come as quite a blow to Labour’s wonder child, and to the party who widely tip him for future leadership. The question remains, what has Miliband done to upset the voters?

We think this poll shows that the public remember oh too well the failed promises that Miliband, and the Labour party, have offered and taken away from us over the years.

In his role as Foreign Minister, Miliband promised to put an end to the UK’s role in overseas torture cases, but instead ended up publishing guidance as to how to interview detainees overseas. He also presided over the financial scandal that saw the Foreign and Commonwealth Office lose vast sums of cash after the budget was left unprotected from exchange rate changes.

But in our view the most fundamental breach of trust was the reneged promise to hold a referendum on the Lisbon Treaty. Miliband was at the head of the party in the writing of New Labours' election manifestos which, as we well remember, promised us a referendum on a European Union Constitution. Strike 1 - the Constitution came and went without a referendum in the UK. Strike 2 – the identical Lisbon Treaty came and arrived without a referendum.

By also leading the defence on the Treaty in the Commons (which a clear majority of the British people didn't want) Miliband is very much synonymous with the whole insult to democracy that the Lisbon episode involved. It’s no wonder then that the people don’t trust him.

The line between fact and fiction

Although Europe has been seemingly neutralised as an election issue, and the main political parties have reached a rather settled position on the Lisbon Treaty, it does not give them license to play fast and loose with the facts of what the Treaty means for the UK.



Having been inspired by the great idea behind the Channel 4 Fact Check blog, we decided to try and apply some of that diligence to recent comments by Gordon Brown about why Labour reneged on the promise in its 2005 manifesto to hold a referendum. Answering questions from readers of the Yorkshire Post (around 6 minutes into the video) he said:

"Have people really seen a huge difference in the relationship between us and Europe over the last few weeks? The reason we did not have a referendum on this is that there was no major constitutional issue that had to be dealt with. They abandoned the concept of a constitutional treaty. They actually specifically said, the European Union, that it was abandoning that idea and then they went to what is a more modest treaty, the Lisbon Treaty, where all what we called our 'red lines', that is no interference with social security or national security, we got what we wanted on policing and justice, we got what we wanted on economic development, we got the freedom to continue to have our own foreign policy - none of these things were affected."

Quite a lot of total misrepresentation there, so we will do our best to debunk some of those fallacies.

• Despite repeating his argument that the Lisbon Treaty was vastly different from the European Constitution, and therefore no referendum would be required, everyone and sundry has admitted that they are essentially the same document (as well as the PM himself). We did the side-by-side comparison proving that they were practically identical. Valery Giscard d'Estaing, author of the original Constitution, said that it still contained "all the earlier proposals" of the Constitution would be maintained in the Lisbon Treaty, even if they had to be "hidden" or "disguised". Straight-talking German Chancellor Angela Merkel said it a little more bluntly: "The substance of the Constitution is preserved. That is a fact."
  
  
• The Government's red lines were an absolute myth. See our research on how they crumbled, one after the other.
  
  
• Not only did the Charter of Fundamental Rights become legally binding (Tony Blair said it wouldn't), but the Government most certainly did not get what they wanted on policing and crime. They wanted that entire policy area excluded from the jurisdiction of the European Court of Justice, but failed miserably, as well as arguing unsuccessfully for retention of unanimity in decision-making in this area. They also opposed the European Public Prosecutor, new powers for Eurojust to initiate criminal investigations, and powers for the EU to set minimum sentences...all unsuccessfully however. Only someone who has never, ever got what they asked for could attempt to spin this as 'getting everything we wanted'.
• Perhaps the EU's increased power in justice areas is what led the Lord Chief Justice Lord Judge to warn a few weeks ago, "The Treaty of Lisbon has brought criminal justice matters to the core of the EU and with it the jurisdiction of the Luxembourg court." This means that if the UK does opt into the new justice and home affairs legislation,

  decisions of the Luxembourg court on issues arising out of the Treaty of Lisbon, even to the extent that they involve criminal matters, would become binding on all of us... The development of the European Union, and the extended jurisdiction of the European court in criminal matters, will have a significant impact domestically. Twenty years down the line where will we be?

  No change, eh?
  
  

• Also on foreign policy, despite promising that it wouldn't be moved into qualified majority voting, this details in just how many areas of foreign policy the Government gave up their veto.
  
  
• As for the question of social security, read this research to see that there was no new 'red line' on the question of social security in relation to the Lisbon Treaty, compared with the original negotiations on the Constitutional Treaty.

Another real hum-dinger came when he said this in conclusion:

"But no constitutional concept was involved. There was no major constitutional or institutional change because of the Treaty, and I think everybody knows, because they haven't seen this huge difference between what happened at the end of last year and what's happening at the beginning of this year."

To suggest that the Lisbon Treaty was not a major institutional change is, of course, absolutely ridiculous and suggests that the Prime Minister has little idea of exactly what competences have been transferred to Brussels with the ratification of the Treaty.



For a comprehensive guide of what powers the Lisbon Treaty gave to the EU see our reseach here.



Moreover, some of the improvements that were promised (increased powers to deal with crucial issues such as climate change, or more scrutiny for national parliaments) have been well and truly debunked in the last couple of months since Lisbon came into force.



The scrutiny promised to Parliament over EU proposals has collapsed on various occasions (see here and here) and the EU was widely viewed as having been sidelined at the Copenhagen climate change conference.



Sadly, they may get away with not talking about it, but Labour's failure to hold a referendum on the Lisbon Treaty amounts to a clear and unequivocal broken manifesto promise. To argue otherwise is a direct insult to democracy in general and British voters in particular.

And the winner is...the European Commission

Remember the promise that the Lisbon Treaty would 'streamline' the EU institutions, i.e. making them simpler and more democratic? Well, if you still believe it (after this, this, this, this and this) with the risk of being bored to death, check this out:

One of the more mysterious - and tedious - elements of EU decision making is "comitology". The system works like this: after an EU law has been agreed by the European Parliament and Council (after having been proposed by the Commission), the Commission, aided by national experts, still has room for manoeuvre in amending or adding to the Directive at a later date, with limited involvement from the European Parliament and the Council (as we explain here on page 31). Whenever a Directive says that something will be decided through "implementing measures", this means that details of an EU law are hammered out in these comitology committees.

The European Affairs Committee of the Danish Parliament has noted that the system of comitology “means that the Commission can adopt EU legislation against the will of a majority of Member States in the Council", saying “We find such a procedure undemocratic” and “Another problem with the comitology system is the short time made available for parliamentary scrutiny.”

Recently, University of Utrecht researcher Gijs Jan Brandsma found that expert bureaucrats from the Commission and member states, sitting in these comitology groups, are responsible for deciding the content of almost half of all EU regulations after the actual decision has been made by the European Parliament and the Council of Ministers. Brandsma argues that the extensive use of expert bureaucrats creates big problems for scrutiny and accountability. In his thesis, called "Backstage Europe" he also interviews one of those expert officials, who in a revealing remark sums up how much discretion these guys have in the implementation stage:

On our way to Brussels, he tells me how he has decided what his input is going to be. Nobody higher up in the hierarchy seems to be involved in his case. There are no instructions. His ministry does not take a clear position regarding his file.

Incedentally, experienced EU lobbyist Daniel Guéguen, has just published a book, titled: "Comitology: Hijacking European Power?". In it, he writes,

today, without comitology, the EU would quite simply be at a standstill. Where does the political level stop and the administrative start? (...) The system has become totally out of balance because the implementating measures have come to +/- 2500 per year while only about fifty directives have been adopted during the same period.

He concludes, "comitology represents about 98 percent of the regulatory activity of the Union in a year. And this 98 percent is the Commission's competence".

This is where the Lisbon Treaty comes into the picture. Under the Treaty, the system is being 'streamlined' (wait for the irony) and replaced by a new legal framework which seperates between delegated acts (art 290 TFEU) and implementing acts. Guéguen attempts to explain the new system:

The word comitology is going to disappear! The only common element of understanding about it is going to be removed from the dictionary. From now on, people will talk of delegated acts (which replace quasi-legislative acts) and implementing acts (which replace comitology strictu sensu).

This is murky territory, but basically, "Delegated acts" are "quasi-legislative acts" which amend Directives. They have political impact and are therefore subject to scrunity by the European Parliament (according to a deal agreed in 2006). "Implementing acts" are very similar, but classified as "administrative measures" with no political impact and therefore subject to very limited parliamentary scrunity. Confused? We are too. But it's getting worse.

According to Guéguen, the Lisbon Treaty will blur the distinction between the two even further, and interpreation will vary from institution to institution.

And MEPs are not quite keeping up. A press release from the European Parliament notes that an EP report on how delegated acts will work is due to be discussed in plenary in April. It notes that Hungarian MEP József Szájer, who is the author of the report, claims that the new system will mean a power boost for the European Parliament, arguing "The consequences of this change are considerable as the EP has achieved its historical maturity being placed on the same footing as Council."

But Daniel Guéguen disagrees; MEPs might be put on the same footing as the Council but, he says, "under the Treaty of Lisbon, the Commission will dominate the institutional trio" (page 62). He argues:

as for the Council of Ministers and the member states, they seem to have forgotten what they negotiated and what they signed in the Treaty of Lisbon (...). The new reform (...) was meant to put the European Parliament on the same footing as the Council of Ministers for delegated and implementing acts. But quite the reverse has occurred. The Council of Ministers has lost its power in the area of implementing to the Commission. It can only intervene after the event for delegated acts and has seen its power curtailed in the area of implementing acts

He concludes: "Henceforth, the institutional triangle is no longer an equilateral triangle. One side of the triangle, the Commission side, is now considerable larger than the two other sides."

Perhaps a book that should be on MEPs' reading list.

We've recently found that around 70 percent of the cost of regulations in the UK originates in EU legislation. In addition to that, 50 percent of the content of these EU laws could well be decided after the Council and the European Parliament have agreed on the actual proposal. And now the Lisbon Treaty would give the unelected Commission more powers to implement laws under the radar of public scrutiny.

This Treaty's democratic credentials aren't exactly getting stronger by the day.

"Twenty years down the line, where will we be?"

Over the Bank Holiday weekend the Independent and the Telegraph both picked up on a lecture given by the aptly named Lord Chief of Justice, Lord Judge, last month, in which he warned of the growing influence of both the European Court of Human Rights (ECHR) in Strasbourg and the EU's European Court of Justice (ECJ) in Luxembourg. He concluded with a question that the Government has done everything it could to avoid: "Twenty years down the line, where will we be?"

Both papers chose to focus predominantly on his comments about the growing influence of judgements from the ECHR on the UK courts and how this poses a challenge to the UK's centuries old common law legal system. The answer, Lord Judge said, is to ensure "that statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court."

The ECHR falls outside the realm of the EU, although, under the Lisbon Treaty, the EU as a whole formally acceded to the European Convention of Human Rights, which the Strasbourg court was established to uphold. And Lord Judge made some very interesting comments regarding this and the EU's growing role in UK criminal law more generally. They are worth repeating here as they went largely unreported at the weekend.

Lord Judge's first point was that "the [EU's] European Court of Justice is beginning to acquire jurisdiction over matters that would normally be regarded as matters not for Luxembourg but for Strasbourg."

He didn't expand much on this but it is an interesting point to watch in the future as there are clearly concerns that, with the EU acceding to the Convention, the remits of both courts has become blurred, with a risk of ECJ mission creep. The first practical example to which Lord Judge refers is that, "The EU has recently signed up to what is called a 'roadmap' of five areas of criminal procedure which must be addressed within the next 5 years to protect and guarantee the rights of EU citizens. I thought that was the job of the Convention."

It also raises difficult questions for the UK specifically, which can 'opt out' of much of the EU's new criminal legislation under the Lisbon Treaty but at the same time remains a signatory of the Convention of Human Rights - although David Cameron has said that he wants to review the Convention's impact on the UK. How will this work in practice, which will take precedence?

The second major point is that "The Treaty of Lisbon has brought criminal justice matters to the core of the EU and with it the jurisdiction of the Luxembourg court." This means that if the UK does opt in to new EU justice and home affairs legislation "decisions of the Luxembourg court on issues arising out of the Treaty of Lisbon, even to the extent that they involve criminal matters, would become binding on us all."

He concludes, "the development of the European Union, and the extended jurisdiction of the European court in criminal matters, will have a significant impact domestically. Twenty years down the line, where will we be?"

This is not just an interesting question but a very important one. You'd have hoped that it had been debated and answered long before the Government signed the Lisbon Treaty.

How many presidents does it take to change a...

Following the infamous "Obama snub", the ‘EU as global power’ project has suffered another humiliating dressing down this week. This time the reality check comes from the Director-General of the World Trade Organisation, Pascal Lamy, who, in his frustration with the shambolic organisation of the EU representation has set out some guidelines as to how the member states should behave at future WTO meetings:

“If one European takes the floor on one topic, and then another European takes the floor on the same topic, nobody listens. Nobody listens because either it’s the same thing and it gets boring, or it’s not the same thing and it will not influence the result at the end of the day….So the right solution, if I may, is at least to make sure that they speak with one mouth. Not one voice—one mouth—on each topic on the agenda. That would be a great improvement.”

More than a little patronising and far from the “unified EU voice” that those supporters of the Lisbon Treaty suggested. Gideon Rachman, reporting from the Brussels Forum of the German Marshall Fund on his FT blog, has offered an insight into how the EU is actually viewed by American diplomats:

“In the lobby of the conference hotel, I just bumped into some official Americans who had been to see senior people at the commission. They had delicately raised the question of which of the two European 'presidents' would represent the EU at future international summits. 'Oh that’s all settled,' they were told, 'they’re both going.' With enormous self-restraint, the Americans apparently refrained from laughing out loud, or banging their heads against the wall. Meanwhile European officials still maintain, with a straight face, that the Treaty has 'simplified' Europe's structures.

Which pretty much sums it up.

Left waiting

It seems that the lack of scrutiny for Parliament since the Lisbon Treaty came into effect is not restricted to the SWIFT agreement.

Documents from the European Scrutiny Committee point that three additional measures have been limited to only four weeks scrutiny time because of the failure of Ministers to deposit the relevant documents with the Committee.

Two different agreements on the sharing of passenger-name records (with the US and Australia), and an extradition agreement between the EU and Iceland and Norway have both seen their scrutiny time cut short in January.

The Committee points out that this "contravenes the undertaking in Baroness Ashton's statement on JHA opt-ins that the Government will place an Explanatory Memorandum before Parliament 'as swiftly as possible and no later than ten working days after the publication of the proposal.'"

Maybe the relevant department took a holiday on 17 December, when the Memorandum was due to be deposited, but that doesn't explain why they failed to do so until 19 and 20 January respectively. While these measures are not as controversial as SWIFT, it would be nice to see the Government adhering on all these proposals to the assurances it made on Parliamentary scrutiny when it was ramming the Lisbon Treaty through.

This is important stuff, as it strikes at the very heart of national democracy and scrutiny in the wake of the Lisbon Treaty (which, on the whole, reduces the role of national parliaments in EU decision making).

A shame so few people are paying attention.