Tuesday, November 27, 2007

It never just rains...

The rows over Party funding and missing data CDs may blow over fairly soon if fortune starts to favour Gordon Brown – although this is by no means certain.

But along with Northern Rock, a more enduring problem with the potential to hole the long-term reputation of the Government below the water line is Europe. Parliamentary ratification – scheduled for early next year – would be a tortuous, drawn-out process. In this light, today’s report from the European Scrutiny Committee is yet more bad news for Brown. A few extracts below:

On the lack of opportunity for parliamentary oversight…

“We again recall that as recently as June of this year the European Council not only emphasised the “crucial importance of reinforcing communications with the European citizens … and involving them in permanent dialogue” but also stated that this would be “particularly important during the upcoming IGC and ratification processes”. Such statements now ring hollow, and we reiterate our earlier comment that the process could not have been better designed to marginalise the role of national parliaments and to curtail public debate, until it has become too late for such debate to have any effect on the agreements which have been reached.”

The ‘red line’ on tax was a distraction…

“In our view, control of tax and social security was never seriously threatened. The previous Treaty establishing a Constitution for Europe contained no proposals to move to QMV in relation to tax.”

On why the UK’s protocol on the Charter is not an ‘opt-out’ (as the Government originally claimed) and will not work…

“It is clear that the Government accepts that the Charter will be legally binding, and it has stated that the Protocol is not an opt-out. Since the Protocol is to operate subject to the UK’s obligations under the Treaties, it still seems doubtful to us that the Protocol has the effect that the courts of this country will not be bound by interpretations of measures of Union law given by the ECJ and based on the Charter. If the ECJ gives a ruling in a case arising outside the UK on a measure which also applies in the UK, the duty to interpret the measure in accordance with that ruling arises, not under the Charter, but under the UK’s other Treaty obligations. Nothing in the Protocol appears to excuse the UK from this obligation.

…In our view, the only way of ensuring that the Charter does not affect UK law in any way is to make clear, as we have already suggested, that the Protocol takes effect “notwithstanding the Treaties or Union law generally.” We note that this kind of provision has been made in the Protocol to the EC Treaty on the acquisition of property in Denmark (No. 16) and in the Protocol to the EU Treaty on Article 40.3.3 of the Irish Constitution (No. 17), but it has not been made in respect of the Charter.”

There is detailed explanation of the UK’s opt-in arrangement on Justice and Home Affairs, particularly the changes that weakened the UK’s protocol subsequent to the agreement on IGC mandate in June. The Committee question whether the UK can be genuinely free to choose whether or not it opts-in to a measure amending an existing JHA measure:

“the risk of losing the benefit of an existing measure, because of a choice not to participate in its amendment, by virtue of a decision in which the UK cannot take part, must put at least some pressure on the UK to opt in. We also note the new possibility for the Council to decide by QMV that the UK should bear the direct financial consequences necessarily and unavoidably incurred if the UK ceases to participate in a measure. This must import some measure of financial risk, not present before, into a decision not to opt in and we question whether it is in the UK’s interests to be exposed to such risk.

It concludes by highlighting the danger of “exposing the UK to new and unpredictable consequences and risk if it decides not to opt in to any transposed or amended measure. The ‘opt-in’ decision under these proposals will become one which may lead to serious consequences for the UK through the transfer of jurisdiction on important measures dealing with civil and criminal justice.”

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