Reform Treaty: European Scrutiny Committee Report

by Carl Gardner on October 10, 2007

I broadly welcome the Commons European Scrutiny Committee’s report about the inter-governmental conference on the Reform Treaty.

The most important point they make is that the Reform Treaty is the “substantial equivalent” of the Constitution. The committee is right to think that (paras. 45 and conclusion at para. 72), and to be unconvinced that the UK’s so-called “red lines” make any real difference. They’re also right (para. 50) to reject the government’s contention that the Reform Treaty has departed from the “constitutional concept” or has no “constitutional character”. They rightly think that way of looking at it is “likely to be misleading”. William Hague was right, in debate in the Commons yesterday, to say that government arguments along these lines are “specious”.

Where the committee is also right is in its doubts about the significance of the UK’s new protocol on the Charter of Fundamental Rights (para. 60). Now, there is very little in life about which more rubbish has been said and wrote than this Charter. Even in the benighted world of Europhile-Eurosceptic debates, where honest men and women are scarcely seen, nothing rivals discussion of this for pure mystification, confusion and darkness. And the trouble is that both sides are so anxious to outmanoeuvre each other that they counter http://www.magliettedacalcioit.com non-arguments with non-measures, like this protocol. The truth is that although the Treaty will make the Charter legally binding, what it will bind the UK to do is almost entirely stuff it’s bound to do already. In substance, the Charter adds almost nothing to EU law. But because the government’s scared of Eurosceptic scaremongering about it, it’s prepared to infuriate other governments – and the unions – by insisting on an almost meaningless protocol, which is emphatically not an opt-out, and adds very little if any further protection.

It’s like Andy Murray reaching for a second racket with no strings – “look how brilliant my return will be now!” – when his opponent is serving with a shuttlecock anyway.

The committee labour under the impression that the Charter’s serve is far bigger than it really is, but they are right to point to the lack of strings. The Charter is unlikely to make much difference to the European Court’s rulings (the court will quote it a great deal; but that’s a different matter), but when it does make rulings based on the Charter, those rulings will apply in the UK. The committee is on to something with that.

The committee is wrong, though, about opting in to “Title IV” measures (para. 67, and conclusion at para. 74). Where under Title IV the Union considers legislating in the area of justice and home affairs – currently civil law cooperation, asylum and immigration, but extending also to police and criminal law cooperation under the Reform Treaty. An example might be a proposal to require Member States to use particular scientific techniques to investigate terrorism, or to harmonise what amounts to corporate fraud throughout Europe.

The UK is not automatically bound by such a measure: It has a special protocol, and this time a meaningful one. But it has the right to opt in, either at the negotiation stage or when negotiations are concluded. The committee seems to think the UK should also have a fourth right, to enter negotiations and then pull out, thus avoiding being legally bound by a measure, if it doesn’t like what’s agreed. I’m sorry, but that really can’t be right, and will surely be unacceptable to other Member States. The double opt-in right Cheap NFL Jerseys is clearly designed to give the UK three options: to give the proposal a wide berth; to get in at the negotiating stage, try to shape it, and then be stuck with the results – like everyone else round the negotiating table; or to watch and wait, and then agree to be bound if it likes what others have agreed. All those options are fair enough, because in return for the UK’s right to opt out, they give the UK no right to interfere with what others want – unless it agrees to set aside its opt-out and negotiate on equal terms. What would be quite wrong would be if one Member State could water down a proposal others were keen on, and having done so, simply walk away from it.

Finally, though, the committee is right I think (para. 68 and conclusion at para. 75) that the much-vaunted new yellow and orange card mechanisms (the orange card is new since the Constitution; the yellow card was already in the Constitution), supposed to give power to national parliaments to object to Commission proposals, isn’t not worth nearly as much as it seems.

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