When France and The Netherlands voted to kill the EU Constitution, it was then said that the EU Constitution was totally dead. Many did not believe this and were sure that in due course the mummy would be removed from its sarcophagus, its bandaging unwound, the stake removed from its heart and the silver bullet excavated from its brain. Thus revived it would, by the use of smoke and mirrors, obfuscation and lies, be represented to the people of the EU as an amending treaty, unworthy of a referendum.
"Yesterday's Times ran quite a good cartoon featuring Brown and Blair as magicians struggling to pull a rabbit out of the EU hat.
The analogy is bang on. The key to a good magic trick is to distract the attention of the audience. And that is exactly what the government is up to in Brussels.
Government spinners keep briefing hacks that it is fighting with its back to the wall to see off all kinds of plots to give the EU more power. The story for domestic consumption is that although the talks are awfully tough, the Government is successfully handbagging its EU partners into submission in the negotiations.
This is mostly baloney. By focusing the attention on a few of the more contentious issues, voters and the media lose sight of everything that the Government is giving up without a fight. Most notably: the creation of a powerful new EU President; a new EU Foreign Minister who would "automatically" speak for us at the UN; and a new voting system which would reduce the UK’s voting strength by about 30%.
While Tony Blair will sign up to the broad outline of a deal in June, Gordon Brown will be in charge of the nitty-gritty of negotiations in the run up to December when the revised Constitutional Treaty is expected to be finalised. In order to avoid holding a referendum, he is desperate for headlines along the lines of "Brown bashes Brussels". He will proclaim "victory" and then sign up to the new treaty.
The Government is already starting to talk about what its immutable 'red lines' are. In reality, most of them are already agreed.
Brown will demand that the symbols of the EU like the flag are dropped. But then hey, they already exist. The reference to the primacy of EU law over national law will be 'axed'. But then most of Brussels thinks that this legal principle is already in force.
Ditto the charter of fundamental rights.
Although most other countries would like it in the new text - it is not a prerequisite. (It is after all, already coming into force by the back door - see for example the creation of the Fundamental Rights Agency in Vienna.)
As The Sun reported yesterday the Germans have already agreed with Blair to ditch the Charter from the revised Constitutional Treaty in order to bag a far greater prize - the abolition of national vetoes over justice and home affairs.
Vetoes are a tricky subject for the Government - they represent a clear transfer of power to the EU level - and clearly cross what is becoming known as the "referendum threshold". In all likelihood the Government will give up the veto in some of the less high profile areas but it will want to be seen to make a stand in areas such as Home Affairs.
The deal is already pretty clear:
The Government will give up the veto on home affairs, but in order to hide this they will be allowed to resort to that old mainstay of EU politics - impenetrable jargon. They will probably secure some sort of fudge: for instance, giving up the veto and replacing it with an "emergency brake", a "joker card" or an "opt-in". Despite what they claim, this will not be as effective a safeguard as a good, old fashioned "no". Just ask yourselves, if it was, why would pro-integration EU leaders be so happy to accept it? If it was really as good as a veto, why bother?
What this argument over vetoes and opt-outs will do however, is act as a smokescreen to distract us from the real meat of the issue. Quite simply, if provisions on justice and home affairs are included in the new treaty as a community competence, it will hugely increase the control of unelected EU judges and bureaucrats over crime, policing and immigration policies.
The European Court of Justice (ECJ) would become the highest criminal court in the land - something which has been resisted by successive UK governments over the years. The Commission would be able to take the UK to the ECJ if it disagreed with its criminal law and procedures - giving EU judges an unprecedented license to change the UK's substantive criminal law. EU bureaucrats have already signalled that they would use this to force us to change our laws on detaining terror suspects.
EU member states would no longer be in charge of proposing which areas of criminal law they want to cooperate on - this would be left to the Commission to decide and drive forward.
Perhaps even more significantly, the UK would also lose its ability to agree extradition treaties with other countries such as the USA or Australia. Our lopsided treaty with the US is a disgrace - but at least we can vote to change it. Once Brussels runs things you can forget it. And don't think for a second that Brussels is better at standing up to the US - have a look at the even more lopsided 'deal' the EU has just done on air travel.
Similarly, we could see the loss of our ability to agree deportation agreements with countries such as Libya. Any ruling on their legitimacy would also be overseen by judges in Luxembourg rather than the House of Lords.
One argument about vetoes which the Government has skilfully managed to avoid to date is the question of the veto over aspects of foreign policy.
Agreeing to set up an EU Foreign Minister would probably also entail agreement to introduce several new areas of majority voting in foreign policy. For example, the original version of the Constitution proposed that votes on policies or actions proposed by the EU Foreign Minister would not be subject to national vetoes. Funny how the government are not saying whether they will reverse that...
In fact this is an old wound. The UK Government strenuously opposed the inclusion of majority voting on foreign policy in the old EU Constitution. Jack Straw said that this clause was "simply unacceptable", but ended up rolling over and accepting it. Unsurprisingly, we haven't heard anything from the Government on this issue in the current negotiations.
The effort to play down the importance of the text leads Europhiles to make some curious arguments. On the World at One yesterday a spokesman for the Centre for European Reform argued that a referendum was no longer necessary because the new version only contains about 20% of the old text.
Leaving aside the percentage figure, (actually it contains all the important things, just none of the original bumf), this is a pretty extraordinary argument - especially when you remember that voters in France and Holland overwhelmingly voted against these ideas. Would it be OK if Gordon Brown lost the next election in a record landslide defeat, but then demanded to stay in office, promising to carry out only 20 percent of the Labour manifesto? It won't wash.
Over the next six months we can expect plenty of spin, lies and tactics of distraction form the Government over the revised Constitutional Treaty. That the talks are being conducted behind closed doors and away from public scrutiny will give them a big advantage. That's why we need to step up the pressure now, so we can force them to keep their promises by holding an open and democratic debate backed up by the promised referendum."
Anyone who doubts that the EU is, by the present revival of its Constitution by another name, striving for de facto and de jure statehood should contemplate the The Montevideo Convention on the Rights and Duties of States, signed at
Although only signed by nineteen Latin-American nation states, Article 1 of the Convention sets out the four criteria for statehood that have frequently been recognized as an accurate statement of customary international law:
“The state as a person of international law should possess the following qualifications:
(d) capacity to enter into relations with the other states.”
The EU already has the first two. The institutions, with the powers and competences conferred upon them by the EU Constitution, of the EU are all those that any State requires to exercise the untrammeled political authority of a government. And the creation of an EU Foreign Minister, backed by an obligation on members to support common EU Foreign policy, fulfills the last requirement.It is vital that we have a referendum on what Blair is plotting to foist upon us.
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