This is not an exhaustive document because that would take volumes; it merely points to certain aspects under the headings below and to why it is imperative that not only must the UK withdraw from the EU without delay, it needs the people of the UK to speak with a concerted voice to make it happen.
1. THE EU AND SOVEREIGNTY
2. SPECIFIC WAYS THE EU OPERATES
3. STANCE OF PARTIES, PUNDITS AND PEOPLE ON THE EU
Part 1: THE EU AND SOVEREIGNTY
The way the basis of the EU has changed since the Treaty of Rome has been to turn it from what Wilson told the people at the time of the referendum, that it was an economic community for mutual trade and cooperation, into a fully fledged sovereign entity [see posts on Greece] with powers which take precedence over those of its member states in key areas.
It’s been done with subterfuge and hiding the instruments of power as they’ve crystallized. It was never a body, in the minds of its founders, to work in cooperation with its member states but was always to subsume those states and reduce parts to the status of regions, a federal structure run from Brussels.
A group of concerned citizens whom we’ll call the Leppard Group produced a pdf on the history of the EU.
# The EU takes precedence over the UK
EURef wrote this, post Irish Lisbon 2:
But, what of the question of whether advancing the objectives of the EU and serving its interests takes precedence over serving the interests of its citizens and those of the Member States?
Bearing in mind that the European Council is also obliged to “ensure the consistency, effectiveness and continuity of its [the EU's] policies and actions” – with no mention of member states, where does that leave the Prime Minister, as member of the European Council?
Answer, of course, there was none. He can represent us … but his duties and obligations are clear. And, as we all know, EU law takes precedence over UK law. The prime minister, and his successors, are duly obligated to obey.
EURef on this question in Parliament:
Ann Winterton won the parliamentary lottery and got to ask the first question at PMQs today. She chose to ask the Prime Minister:
“When the Lisbon treaty comes into force, the European Council will become a formal institution of the European Union. As the UK member of that institution, will the Prime Minister confirm that he is bound by its rules and is thus obliged to further the objectives of the European Union in preference to those of the United Kingdom?”
The answer was predictable – that we are sovereign but that is not borne out by what follows below in this article.
# Test case on the continent
Whilst the implications are a little scary, its nice to see the reality of the EU painted so starkly.
Le Monde gives prominent coverage to a judgement made yesterday by the Conseil d’Etat – France’s supreme court for administrative justice – which granted European law an effective “constitutional immunity”. This means EU acts transposed in France have legal supremacy, even if they conflict with the French Constitution.
# The real purpose of the EU
But, in raising the alarm here, the newspaper – in common with virtually every other commentator – is missing the greater danger, ushered in by the same treaty. The danger is “hidden in plain sight” but has been consistently and willfully ignored – and continues to be, to this day.
But, as we pointed out – nay screamed out – in our earlier posts, the most fundamental change in the constitutional Lisbon treaty is to absorb the European Council into the structural institutional maw of the EU, making it formally an EU institution, bound under treaty law to further the objectives of the EU and subject to EU law.
Since the membership of the European Council comprises the heads of state of governments of the member states, this means necessarily that our prime minister becomes a servant of the European Union, bound by the treaty to promote its objectives, and subject to its law. He will no longer represent us in the European Union but, as part of the supreme government of Europe, is one of 27 who will determine the policies of the EU for individual vassal states to implement.
Thus, as we have remarked many times, come the next general election, we will not be electing MPs, with the wining party then go on to form our government. We will we choosing an electoral college which will then go on to choose the person it wishes to send to Brussels, not as our representative but as one of the 27 who will take part in the supreme government of Europe.
# Constitution and Treaty the same or not
EURef drew attention to an exchange in the Lords:
Lord Lyell asked HMG what was their definition “of a constitutional treaty for the European Union” to which Baroness Ashton of Upholland who is the Lord President of the Council replied:
My Lords, a constitution is a founding document of an organisation. The constitutional treaty would have repealed the existing European Union treaties and refounded the EU under a new, single constitutional order. The Lisbon treaty amends the existing treaties, as did the single European Act, Maastricht, Nice and Amsterdam.
Lord Lyell, as is the custom in the House of Lords, followed his original question up with a supplementary:
My Lords, I am very grateful for and fascinated by the noble Baroness’s Answer, but will she be kind enough to enlighten me on why the Foreign Affairs Committee of another place pointed out to people such as me that there is no material difference between the constitutional treaty and the Lisbon treaty? The Foreign Secretary, no less, thought there should be a referendum to approve the first, but on the second he has apparently changed his mind. What caused him to change his mind?
The Leppard group add to that:
# 13th spitfire’s graph of the changing power sharing of the two bodies illustrates the way the power sharing trend is going:
From 13th Spitfire’s sidebar, an FCO opinion on how to sell the EU to the people:
1971 FCO 30/104
“The transfer of major executive responsibilities to the bureaucratic Commission in Brussels will exacerbate popular feeling of alienation from government. To counter this feeling, strengthened local and regional democratic processes… and effective Community regional economic and social policies will be essential… there would be a major responsibility on HM Government and on all political parties not to exacerbate public concern by attributing unpopular policies to the remote and unmanageable workings of the Community.”
# New laws promulgated
It’s not a toothless provision the EU enjoys. There is a total of 1307 new laws in the pipeline from the EU, using the above mechanisms … many of Blair/Brown’s over 4000 new laws were EU “recommended” or directed.
Update: Please note that IPJ has corrected me on this. His note:
This gives a misleading and underestimated figure. It is 4000 new criminal offences. The number of new laws is estimated at 30,000, the majority being in the form of EU ‘regulations’. (referring to the first part of the ‘regulation, directives, decisions’ section in my post.
The regulatory zeal of the European Union compounds the problem enormously with the number of legal acts in force in the EU rising from about 10,000 a decade ago to not far short of 30,000 today – Mark Littlewood – and as we know, EU regulations become UK law by default, mostly without reference to our parliament, although some are introduced via SI’s where existing UK law needs to be amended to accomodate the new EU regulations.
See 1.3.2. Regulation [below]
# Our MPs make few new laws themselves, as sole UK laws.
It is important to remember that our UK Parliament, our MPs, now only create on their own initiative in the UK something in the region of 15% of the laws that pass through Westminster. All other laws and Statutory Instruments are in furtherance of laws that have been made in Brussels using the 3 methods [below].
As the Lisbon Treaty as subsumed allows for self amendment, there will be no more treaties of this kind, only International Agreements that will now be negotiated and sealed by the EU, and former treaties that will be adopted and form part of the TEU and TFEU, an example of which can be found here.
All other law, in the parlance of the EU, is called Secondary Legislation, and it is derived in the following ways, and I outline the three most important elements of secondary legislation, Regulations, Directives and Decisions. (and I take this from the EUR-LEX database direct).
The ‘secondary legislation’ is the third major source of Community law after the treaties (primary legislation) and international agreements. It can be defined as the totality of the legislative instruments adopted by the European institutions pursuant to the provisions of the treaties. Secondary legislation comprises the binding legal instruments (regulations, directives and decisions) and non-binding instruments (resolutions, opinions) provided for in the EC Treaty, together with a whole series of other instruments such as the institutions’ internal regulations and Community action programmes.
Adopted by the Council in conjunction with the European Parliament or by the Commission alone, a regulation is a general measure that is binding in all its parts. Unlike directives, which are addressed to the Member States, and decisions, which are for specified recipients, regulations are addressed to everyone.
A regulation is directly applicable, which means that it creates law which takes immediate effect in all the Member States in the same way as a national instrument, without any further action on the part of the national authorities.
Adopted by the Council in conjunction with the European Parliament or by the Commission alone, a directive is addressed to the Member States. Its main purpose is to align national legislation.
A directive is binding on the Member States as to the result to be achieved but leaves them the choice of the form and method they adopt to realise the Community objectives within the framework of their internal legal order.
If a directive has not been transposed into national legislation in a Member State, if it has been transposed incompletely or if there is a delay in transposing it, citizens can directly invoke the directive in question before the national courts.
Adopted either by the Council, by the Council in conjunction with the European Parliament or by the Commission, a decision is the instrument by which the Community institutions give a ruling on a particular matter. By means of a decision, the institutions can require a Member State or a citizen of the Union to take or refrain from taking a particular action, or confer rights or impose obligations on a Member State or a citizen.
A decision is:
- an individual measure, and the persons to whom it is addressed must be specified individually, which distinguishes a decision from a regulation,
- binding in its entirety.
# Delegated acts
Statewatch examined the methodology of “delegated acts” which allow the changes to laws without due process:
… and so on. This is referred to again further down.
# Commission recommendation
The EU way of making policy, whether constitutional or not, often uses Commission Recommendation. They set up a committee with a shelf life, let’s take security as an example and [thanks Witterings and IPJ]:
To make it easy for the domestic politicians to lie to you, to tell you that the EU doesn’t run policy, what happens is this:
- ESRIF delivered its final recommendations in autumn of 2009 and the Final Report was published in December 2009.
- As stated in its mandate, ESRIF will expire at the end of 2009.
Here today, job done, gone tomorrow. Within the European Commission structure there are several hundreds of these groups, (creating policy that is then translated firstly into Commission opinion, a rubber stamp vote through the EP, then into national law and sold locally to the public by domestic politicians as their own Party policy), groups that vanish as quickly as they came about.
So, with that mechanism of setting up committees with expiry dates, they are able to implement something like this:
Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) – Article 2.4: The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the framing of a common defence policy.
How many people know of the existence of the Military Committee of the European Union (EUMC) which was set up under Council Decision 2001/79/CSFP and amongst whose functions is included: the overall concept of crisis management in its military aspects; military aspects relating to political control and to the strategic direction of operations; the risk assessment of potential crises; the military dimension and implications of a crisis situation; the elaboration, assessment and review of objectives and the financial estimation for operations and exercises.
The government over here adopts the recommendations, the committee over there expires and what is left over here is sold as “national” policy when it was nothing of the kind, nor can the policy be revoked because the committee which implemented it is now defunct and there is no mechanism for altering or revoking it.
That is one way it is done but there are others.
# Statutory instruments
Statutory Instruments delegate authority to ministers to amend or supplement Acts of Parliament, and to present them to parliament where technically it is possible to challenge that delegated authority, but in a place where few MP’s bother to read primary legislation before voting you can be assured that even fewer bother to read SIs as they are presented. In general SIs are passed in bulk on a show of hands by the minimum number of MPs required to be present in the chamber.
So far 343 such Statutory Instruments have been presented to Parliament in 2010, and whilst most are merely small administrative matters or corrections to primary legislation, many have huge and far reaching consequences, but to my knowledge none have so far been challenged this year.
# The new powers of the Commission
Whilst the Presidency and the Commission can amass the power, it still lack[ed] the authority, that still [lay] with the Council of Ministers and the EU Parliament. Until now.
Anyone trying to understand the effect of the Lisbon Treaty on the decision-making procedure needs to understand the use of Article 290 of the TFEU which allows the legislator to delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of a legislative act.
In other words, a form of Statutory Instruments for the European commission. Government by executive order.
In a communication from the European Commission Implementation of Article 290 of the Treaty on the Functioning of the European Union (COM 673/09). In its 15 pages it states:
“The scope of Article 290 cannot be determined simply by examining in detail the terms used by the authors of the new Treaty to define delegated acts; the provision also needs to be put into context, by looking in particular at its historical connection with the regulatory procedure with scrutiny and at its links with Article 291 on implementing acts. For it is around Articles 290 and 291 that the legal framework will have to be constructed to replace the comitology system established under the Treaty establishing the European Community.”
Yup. Amending the Treaty already, and it refers to the same delegated authority that allow British ministers to issue Statutory Instruments, and the same delegated authority that allowed a small number of unelected members of the Presidium and Politburo to rule the USSR.
As for the UK, our very own EU Scrutiny Committee did take the time to read the Communication from the Commission. This was their response.
We clear the document from scrutiny and have no further questions to the Minister.
They don’t even fight it any more.
# Provisional agendas
EU: Council of the European Union: Provisional agendas for meetings of the Council of Ministers (JHA Council pp28-41, pdf). Note the new format:
1) Legislative deliberations;
2) Non-legislative activities (which does not mean to say that these issues are unimportant, on the contrary, they can include substantive decisions on implementation under the Regulatory procedure);
3) Mixed Committee: Schengen: (including the Schengen Information System, SIS & SIS II) and includes Iceland and Switzerland and soon Norway;
4) “A” items: Measures “nodded” through without discussion – again can contain substantive measures/legislation which while agreed by to EU governments may raise substantive concerns for civil society (and sometimes national parliaments).
Under the guise of expediency and streamlining, neither of which is an imperative when discussing legislation, cf. the UK parliamentary procedures, they are able to suspend certain rules in certain cases but the whole thing is fluid and changes to meet new circumstances.
Combine that with the importance of any major move being directly proportional to the thickness of the documentation in which it sits, there is a quite opaque approach to legislation altogether.
# Power over local parties
There is even provision, if they want it, to decide which parties in the UK shall exist and which shall not.
# Prisoner’s votes
Prison reform groups are saying this year’s general election will be illegal unless prisoners are allowed to vote: It’s been a subject of debate for five years, since the European Court of Human Rights declared that inmates in the UK should be given the right to vote in elections.
Fausty mentions this as well:
# Constitutional law
There are people [addressed in the third part] who are trying to maintain that the EU has no jurisdiction in Britain and therefore we have every right to determine our own way. There are campaigns going around saying this and if they mean we have a moral right, a God given right to self-determination … well, they’re correct in this.
Legally, it is a quagmire. Constitutional lawyers on both sides have not established the last word on it so then it moves to the concept of “supremacy”. Here is where a referendum result saying “no – withdraw” would immensely strengthen the right to self-determination.
Britain and more specifically, England, has effectively, legally and in terms of power-sharing, ceased to exist. The only way to stop the onslaught is to insist that your MP and PPCs in your constituency will vote for a referendum on withdrawal from the EU.
You can do this yourself or you can use the Albion Alliance tools. If you also choose to pledge to this cause, then it all helps the voices for a referendum. I personally don’t care which way we get there and I see the Albion Alliance as just a tool in the battle. We’ve certainly tried to make it easy for you to tackle your parliamentarians on this issue.
No support for a referendum? No vote for them.
Filed under: Politics & economics