A Cut-And-Paste Job (Or Two)

Hmmm, I'm sure I promised either here or at Y Barcud Oren that I'd post my European Law essay on the difference between the Lisbon Treaty and the EU Constitution, but I can't find the promise. Still, thanks to the surprisingly effective wonders of cut-and-paste, please find enclosed 1,400 words of legally analysed goodness...

The entry into force of the Treaty of Lisbonⁱ on December 1^st, 2009, was the culmination of a decade-long process of reform that started with the failed Constitutional Treatyⁱⁱ. Much of the rhetoric surrounding Lisbon in the UK has focused on the question of whether it is entirely or substantially the same as the Constitutional Treaty, making that comparison an important issue for academic lawyers.

From their outsets the two processes involved were very different. In establishing the Convention on the Future of Europe, the Laeken Declarationⁱⁱⁱ asked the convention to consider; simplification of the treaties, division of powers in accordance with subsidiarity, the status of the Charter of Fundamental Rights of the European Union^iv and the role of the institutions and of national parliaments within the institutional structure.

The Berlin Declaration, however, merely stated an aim of “placing the European Union on a renewed common basis”. And while the Convention spent eighteen months of plenary sessions considering the questions before it, Berlin's aims were achieved by way of a rapidly executed intergovernmental conference.

This difference is reflected in the structures of the respective treaties. The Constitutional Treaty would have replaced the existing treaties with a single document organised in an entirely new fashion. Lisbon, by contrast, is an amending treaty in the same way as Maastricht, Amsterdam and Nice and leaves the existing treaties in place, albeit with the Treaty Establishing the European Community renamed the Treaty on the Functioning of the European Union (TFEU). An unfortunate result of this structure is that there are now three different numbering systems for the treaties; the original system, the Amsterdam system and now the Lisbon System^v.

The clear intent of the Berlin process was to ensure that the most important reforms proposed in the Constitutional Treaty were enacted and the content of Lisbon is testament to that goal. Certainly, fundamental organisational changes such as the transfer of legal personality from the Community to the Union, reform of the pillar structure and changes to the institutions such as the reallocation of seats in the European Parliament have largely survived.

Equally, the structural differences in the Lisbon Treaty do have an effect on even these most basic of reforms. The Constitution, for example, would have abolished the pillar structure outright, with a single treaty governing all three areas equally. But while Lisbon firmly integrates Police And Judicial Co-operation In Criminal Matters with the European Community in the TFEU^vi, the Common Foreign And Security Policy remains within the Treaty on European Union and subject to specific rules of its own^vii. As a result, CFSP remains more intergovernmental in nature and does not become subject to the jurisdiction of the European Court of Justice as PJCC does.

One of the more obvious omissions from Lisbon is, ironically, an element of the Constitutional Treaty which changed very little, namely the explicit statement that Union law has primacy over the law of member states. This was already well-established in jurisprudence, dating back to Costa v Enel^viii and its predecessors^ix, but was not explicitly stated in the treaties. Lisbon, by contrast, merely provides a declaration that the case law exists and is unaffected by its absence from treaties themselves^x.

Further differences between the treaties resulted from the negotiated compromises required to ensure assent to Lisbon by various member states. Poland were a key player in this, achieving something of a resurrection of the Ioannina Compromise in relation to qualified majority voting and obtaining a Advocate General post by way of an expansion of that role. The failed Irish referendum of 2008 also led to significant concessions, notably the retention of the existing system of one Commissioner per member state; further guarantees on policy matters including abortion, taxation and neutrality are also due to be added to Lisbon by way of a protocol to Croatia's accession treaty due to be concluded by 2011. Ireland and the United Kingdom had also already obtained an opt-out from changes to qualified majority voting in PJCC matters.

The negotiation process also threw particular light on the changed status of the Charter of Fundamental Rights of the European Union. This would have been fully incorporated as Part II of the Constitution, but under Lisbon it is merely elevated to a position equal to that of the TEU and TFEU. Furthermore, while the Charter's new status is generally intended to give make it binding, this is not the case for Poland and the United Kingdom as confirmed by protocol. During the ratification process the Czech Republic sought confirmation that the Charter would not apply retrospectively, particularly to claims by Germans expelled from the former Czechoslovakia after World War II and this was subsequently confirmed.

Of all the differences between Lisbon and the Constitution, however, it is perhaps the very word constitution that is most conspicuous by its absence. As a change of approach it informs pretty much everything else that follows it, removing the driver towards a single document and opening the door, at least philosophically, to the amending treaty process that begat Lisbon. Politically it was also hugely important; between the elevation of the status of the symbols of the union (e.g. the flag and the anthem) and the terminology surrounding the President of the European Council and the Minister for Foreign Affairs, there was a great deal of popular criticism of the quasi-national status accorded to the Union by the Constitution^xi. With the terminology softened to refer to a treaty rather than a constitution and to the High Representative of the Union for Foreign Affairs and Security Policy, such criticism was substantially mollified.

It is vital to recognise, however, that the removal of the word constitution does not in any way prevent Lisbon from being one. Organisations of all shapes, sizes and purposes have a document or documents that govern the relationship between their members, be it the Articles of Association for shareholders in a company, the constitution of a social society or sporting club or the formal written constitution of a country. All of these fall within the general definition of a constitution, whether they purport to ascribe national status or otherwise.

The constitutional status of the Treaties of Rome was thus established long before the Constitutional Treaty was envisioned; the ECJ had referred to the EC Treaty as such in Parti Ecologiste Les Verts v European Parliament^xii and in a later opinion stated that the treaty, “...nonetheless constitutes the constitutional charter of a Community based on the rule of law”^xiii. Regardless of the terminology employed, any later revision of that treaty was bound to retain that status, whether for the Community or, as now post-Lisbon, for the Union.

Ultimately, then, it should be no surprise that Lisbon is as similar to the Constitutional Treaty as it is, given that both processes needed to cover the same ground. It is difficult in those circumstances to justify the assertion that ratification of Lisbon is discredited by its similarity to the Constitutional Treaty; the opposition to the latter was based not on its status as a constitutional document for the Union but on the broader, quasi-national aspects of its approach. Moreover, in the case of the United Kingdom the assertion became necessary in the pursuit of the technical challenges to ratification in which context the asserters were not especially concerned with the practical, as opposed to purely textual, veracity of their assertion^xiv. Either way, it is clear that the transition from the Constitutional Treaty to Lisbon has introduced substantial changes that will have real implications for the operation of the Union going forward; whether those changes improve matters remains, at this early stage, to be seen.

iTreaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, [2007] OJ C306/1

iiTreaty Establishing a Constitution for Europe, [2004] OJ C316/1

iiiLaeken Declaration on the Future of the Union, [2001] SN 273/01

ivCharter of Fundamental Rights of the European Union, [2000] OJ C364/1

vSteiner, J. and Woods, L., “EU Law”, 2009, 10^th Ed., Oxford: Oxford University Press

viPeers, S., “EU Criminal law and the Treaty of Lisbon”, [2008] 33(4) EL Rev 507

viiCraig, P., “The Treaty of Lisbon: Process, Architecture and Substance”, [2008] 33(2) EL Rev 137

viii6/64, Flaminio Costa v ENEL, [1964] ECR 585

ix26/62, Van Gend en Loos v Nederlandse Administratie der Belastingen, [1963] ECR 1

xGriller, S. and Ziller, J. (eds), “The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty?”, 2008, Vienna: Springer-Verlag

xiKumm, M., “Why Europeans will not embrace constitutional patriotism”, [2008] IJCL 117

xii294/83, Parti Ecologiste ‘Les Verts’ v European Parliament, [1986] ECR 1339

xiiiOpinion 1/91, [1992] OJ C110/1

xivR, on the application of Wheeler v Office of the Prime Minister, Secretary of State for Foreign and Commonwealth Affairs and Speaker of the House of Commons, [2008] EWHC 1409

George Osborne: Hell Freezes Over

It'd be easy to dismiss George Osborne's "Sid The Banks" announcement as just another plucked-from-thin-air policy from a Shadow Chancellor swimming further and further out of his depth. And while those things are true and the blogosphere has done its usual excellent job of exposing the idea's flaws, we should reflect that it's not the first Tory policy announcement this month that suggests they may be embarking on their Greatest Hits tour.

After all, from our position of 20/20 hindsight, it's easy to say that another public share offer won't produce a share-owning democracy because those in the 1980's didn't (emphasising of course that failing to recognise that people buying purposely undervalued assets will be offered and take a quick profit from institutional investors who are willing to pay something approaching the true value of those assets is just the sort of economic illiteracy we've come to expect from Georgie...)

But did you need 20/20 hindsight? Sid may be the exemplar of the big Thatcherite privatisations, but that was December 1986; BT had already gone in December 1984 and the electricity companies would not be sold for another five years. Is it credible to think that the Tories didn't know how those later privatisations would work out? Or is it more likely that they knew but didn't care?

What worries me, however, is that not every Tory privatisation was a Sid job. The rail franchises certainly weren't and neither were their oft-forgotten predecessor, the bus companies. In both cases, many of the resulting companies were management buy-outs later absorbed into bigger concerns. Gee, do you think the Tories might propose something akin to management buy-outs in other areas of the public sector so that big companies can once again snap them up later on so it's not so controversial as direct privatisation while providing a juicy dividend to the workers involved?

Okay, the Tories might have had a Damascene conversion to co-operativism, but then I might be signed to play power forward for the Los Angeles Clippers. It seems rather more likely that as the individual elements of the grand Tory scheme emerge, we'll find that many of them are similarly designed, to disguise the real intentions. And hey, if you were proposing some of the things the Tories were, wouldn't you be ashamed of them too?

Saying The H Word

Every month(ish) in Y Barcud Oren, I try as best as possible to explain the latest developments in Welsh politics to the English. It's a task I enjoy enormously (and let's face it, if you had two government parties throwing you this much comedy material, you'd be enjoying it too) but sometimes covering the news isn't enough to give a sense of the developing trends sneaking their way into the mix. And with just ninety days (presumably) until the polls open, there's one developing trend in Welsh politics we really should be looking at.

There's a party excited about a hung parliament. And it isn't us.

I suppose Alex Salmond's boast that the SNP will return 20 MPs at the general election is so oft-repeated that it might pass you by, particularly in a psephologically-savvy party that knows that a party that returned 21 of 72 constituency MSPs (29%) in an election specifically about Scotland will have trouble returning 20 of 59 MPs (34%) in a UK-wide election. And with coverage of devolved matters so patchy, leaving the English viewer with just intermittent nods to party conferences and the odd controversy, you could be forgiven for writing it off as bog-standard leadership bluster. But when you live with it every day, you can't fail but come to a far more disturbing conclusion.

They actually believe it. And I mean believe it, as the True Word and the Good News.

In the nationalist oral history (which has now transcended mere political narrative and become a national epic poem, somewhere between a new Mabinogion and the Mahabharata) the 2007 elections represented a fundamental turning point wherein the people of Scotland and Wales rose up and demanded that Plaid and the SNP lead them to glory. Minor details like the inevitability of two parties that had spent years framing themselves as considerably Labourer than yow benefiting from the unpopularity of a disastrous Labour Prime Minister and the supposedly crushing mandate only amounting to 31% and 22% of the vote in Scotland and Wales respectively somehow failed to trouble the chroniclers.

Now if you're telling yourself that sort of story you're already in all sorts of psychological trouble, but the hung parliament idea adds another layer of lunacy. The SNP target of 20 surely presumes that even in the worst case scenario they get to 15 and Plaid must be imagining a green sweep from Ynys Mon and Aberconwy in the north through Ceredigion to Llanelli that "guarantees" them at least 7. And if your minimum nationalist expectation is 22, with an option on anything up to 35, then you have to consider yourself, however delusionally, a player in the post-hung game.

At this point the rational analyst thinks that it's quite cute that the nats think the other boys will let them play but wonders who exactly they think will give them the ball. Getting Plaid onto the same page as the Tories in Wales for the rainbow that never was was tough enough and as for the SNP, one imagines that Annabel Goldie's response to any approach from them would be distinctly Anglo-Saxon. Maybe the SNP's referendum (which you have to presume would be the non-negotiable first item on their coalition shopping list) could be delivered by Westminster itself without Dave having to beg to Annabel, but post-hung Dave will want to keep the good ship Change on course for a decisive second election win and if any issue is likely to blow him onto the rocks of the small matter of his party still being, you know, Tories, giving the SNP a referendum is it.

That rational analyst is, however, being a bit Lib Dem in assuming that the Tories are the most relevant partner here. What happens if Labour manage to stay over 300 and a Labour-nationalist coalition is a possibility? The Lib Dems might feel that Labour's losing fifty-odd seats and quite possibly the popular vote overall disqualified them as partners. But for the nationalists, for whom any coalition deal is just the next step in their epic poem, is that a factor? After all, it is essentially what Plaid are doing now, albeit in the Assembly where we've slightly more experience and a lot more maturity about the nature of coalition politics than Westminster. If the nats feel they can come back to their nations and successfully justify rewarding failure because the epic poem told them to, they could well go for it.

Of course, that's all presuming the delusion becomes reality and the fact I'm calling it a delusion should tell you all you need to know about that. Nevertheless it's a delusion that will frame, however subconsciously, all the nationalist spin from here on in. Moreover, you have to wonder where the nationalist heads will be when they wake up on May 8th to find their dreams in tatters. With a powers referendum in Wales still to deliver and a year of governing left for both parties, any failure to respond to the reality of their lot could be catastrophic for their countries and ultimately for their votes.

A Very Corporate Wardrobe Malfunction

As a Crystal Palace fan and a Cardiff resident, football's not been very good to me this week. And with Gloucester RFC not setting the world on fire and Gloucestershire CCC a long way from being back in action, America's been providing my sporting fix of late. Which would be fine if they could manage to hold something as simple as a Super Bowl without dragging politics into it.

It all started with a player who isn't playing in the Super Bowl and may well never do so. Tim Tebow has just finished his final season as quarterback at the University of Florida, having won both a National Championship and the Heisman Trophy during his four years with his hometown alma mater. Tebow has long been subject to nationwide scrutiny, particularly now as he moves into the professional ranks where long-standing questions about the suitability of his own personal skill set to the NFL will finally be answered.

Tebow's initial claim to fame, however, came well before his recognition as a professional-calibre player. He was one of the first players to benefit from a 1996 Florida law allowing home-schooled students to play for the high school team of the school district in which they lived, but moved with his mother to an apartment in a different district so that he could play for a bigger school that passed more. At first the move was controversial, since conventionally-schooled players could not move districts with such ease, but Tebow is now the poster child for efforts to give the same rights to home-schooled children in other states.

And then, with his place in professional football still tentative and millions of dollars resting on his every action between now and the draft in late April, Tebow decided to wade right into the middle of the abortion battle and in that most public of American settings; a Super Bowl ad.

You see, the reason Tebow was home-schooled is that his parents are missionaries who wanted their children's education to reflect their Christian values. And Tim certainly wears his faith on his sleeve, or more accurately on his eye black which regularly carries references to biblical passages. But on Super Bowl Sunday, he'll wear it in an $2.5million ad for Focus On The Family which, as the name suggests, is an anti-abortion, anti-gay, anti-evolution lobbying organisation.

There are two minor problems with this. In the first case, CBS had previously banned such advocacy ads altogether, notably in 2004 when the United Church of Christ, Barack Obama's own denomination, were prevented from running this ad welcoming gay and lesbian members;



Perhaps more pertinently, however, there is the likelihood that the ad itself will be, well, bollocks. It's expected to feature Tim and his mother, Pam, "telling their personal story", namely that while Pam was pregnant during a missionary trip to the Philippines in 1987, she contracted amoebic dysentery and suffered a placental abruption after which she was advised to have an abortion. Which is fine, except that abortion in the Philippines has been illegal since 1870, specifically prohibited in the constitution since, gee, 1987 and carries a six year jail sentence for anyone performing or receiving one. If you can find me a doctor who advises an abortion under those circumstances...

Meanwhile, CBS have been reviewing ads for the back-up list for the Super Bowl and saw fit to reject this fine example of the advertising executive's art;



Because, of course, a major television network isn't an enormous hypocrite, oh no...

Choose Life, Choose Method Of Choosing

Reading through the Lib Dem blogosphere I'm often struck by the recurring thought; "Would we mind fixing one thing at a time please?" I suppose I shouldn't be too surprised, therefore, to find that thought cropping up elsewhere. Not that Geraint Talfan Davies and the IWA are trying to fix multiple things at once, of course. But they do call useful attention to something we often seem to be.

Mind you, I am surprised that it wasn't the Lib Dem blogosphere that alerted me to a House of Lords Constitution Committee investigation of referendums; I'd have expected geekery-a-plenty on that sort of thing by now. Then again, given that Wales is the only part of the UK likely to have a referendum (that actually matters and has a cat's chance in hell of being answered in the affirmative) in the near future I suppose we do have the most immediate interest in that investigation's results.

That referendum is a statutory requirement of the Government Of Wales Act 2006, but you have to ask yourself why? As the IWA point out, Britain's referendal history has a lot less to do with questions of vital constitutional importance and a lot more to do with political expediency. Britain didn't need a referendum to join the EEC in 1973; it needed a referendum pledge from Harold Wilson in 1974 to placate the TUC whose opposition to it had divided his cabinet. Every European referendum pledge since stems from the divisions in John Major's post-1992 government; Maggie herself happily signed the Single European Act without a thought to a referendum because she was politically strong enough to do so. As for Lisbon, it's the subject of one of my coursework essays so I'll let you know when I've finished it...

Meanwhile, the 1979 devolution referendums were the result of a minority Labour government facing opposition in its own ranks, notably from Neil Kinnock. And of course, once you'd had the 1979 referendums you had to have the 1997 ones, which begat the GLA referendum, which begat the North East regional referendum, which begat, which begat... Heck, if instead of specifically creating the Scottish Parliament and Welsh Assembly, Labour had gone the whole hog and established regional government for the whole UK (which is, of course, exactly what they should have done) the whole thing would have been essentially a local government reorganisation and you wouldn't even have needed the referendum on constitutional grounds.

For Wales, then, the IWA's picture is gloomy; a powers referendum that shouldn't be necessary, whose result will depend more on the wording of the question and the internal battles of the coalition over timing and that might be lost when losing it simply isn't an option. And now it may not even be the last word; Jack Straw has already said that any future move towards a separate Welsh legal jurisdiction would need a referendum, which for such a technical and fundamentally necessary reform is simply bonkers.

For Liberal Democrats, however, the IWA ask a far more searching question; what does this proliferation of referendums mean for representative democracy? Obviously we were talking about fixing the political process long before it became a hot button topic, but now that it is we shouldn't start pretending that every policy idea in that direction is sacrosanct. Saying as many do that we should put more issues to referendums is fine in and of itself, but when you're already talking about PR, an elected second chamber, votes at 16, election finance reform and power of recall, at some point you have to ask yourself what the result of all of that would be.

To put it another way, if we delivered PR, elected second chamber and election finance reform, three things we've only been promising since the neolithic, wouldn't that do the job? Or at the very least, isn't it worth giving those things a chance to do the job before jumping into things like referendums and recall powers that really do change the nature of democracy? Having suffered so long from the effects of a political system that was designed by throwing lumps of constitutional concrete into a pile and hoping it ended up as a house, I'd like to think we were employing a little architecture in sorting the mess out. Either way, I suspect the committee's report will be an interesting read for the Lib Dems and for everyone who's waiting for One Wales to get on with it.