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A major re-write?

• Mark Mardell
• 29 Jun 07, 02:59 PM

If journalism is the first draft of history, I may have to go for a major re-write. How much can the be changed at an inter-governmental conference, which opens in July? told us for weeks that an agreement at last week’s summit would only be worthwhile if it was very, very clear. If all the major political points, and indeed the minor ones, were dealt with. They said that the civil servants would just be left with pulling the thing together and sorting out a few legal niceties. Every other government agrees with them. I certainly believed them. You might think this naive, but opponents of the treaty also argue that what it means is clear enough to demand a referendum.

So a couple of days ago I said that a senior academic was β€œplain wrong”, according to everyone I had talked to, when he argued in an interview that no-one could yet say what the treaty meant. I didn’t name him at the time, but he is , and he wrote to me very politely making a powerful case so I asked him if he could put his view here:

"Visitors from Mars would look at the current state of play on the Reform Treaty with some bemusement. This group of European States, having come together ostensibly to produce the richest and most progressive region in the world, cannot even produce a document that anybody can understand or summarise. Is it significant enough for a referendum? What does it change? Nobody is quite sure. So-called experts come out with statements that appear empty, contradictory and arcane. If the visitor were a policeman, the words 'piss up' and 'brewery' might be mentioned. If they were a little green monster, they might take a bit of chewing gum and pop off in their space ship back home.

There is a simple reason why this is so. The heads of state are intelligent people aided by intelligent people. If they had wanted a clear, comprehensive document, they would have written one. It is neither clear nor comprehensive because they did not want it to be these things.

How do we know this?

First, there is the length. The length is 16 pages, and a fair part of this is empty page or waffle. The agreed in 2004 is 482 pages long. The agreement, whilst it refers a lot to the constitutional treaty, is not intended to be, nor could it be at that length, a comprehensive resettlement of the latter.

Secondly, there is the format. Normally, six months before an agreement (the current time-frame) one would have a framework document. This takes the form of a legal text with square brackets surrounding the points still to be agreed. There is no such detailed roadmap this time. Instead, the 16 pages contain a mixture of declarations ('No constitutional status for the Reform Treaty'); legal texts (the protocols with the UK opt-ins and outs); and instructions. Many of these instructions are vague, incomplete and even contradictory.

Finally, civil servants say getting a final text by December will be a big ask, which would be odd if they only had to dot the i's.

We also know why this is so. The Germans wanted to bring the matter to a head, after two years. Except there was a problem. Two-thirds of the member states had ratified the constitutional treaty and had indicated that the new treaty should be the same, with a few concessions for the individual trouble-makers. The other one-third did not see it this way. They not only had their individual red lines but thought the new treaty should be more modest in tone and substance than the old one. Otherwise, they would threaten a referendum.

How to bridge the gap? Here Angela Merkel played a blinder. The agreement states that the constitutional treaty will only be included in the Reform Treaty 'as specified in this mandate'. The one-third will argue the constitutional treaty matters only insofar as there are references to it in the document, and the rest is up for negotiation (as Geoff Hoon did on ). As the agreement is incomplete and only makes sense by looking at the constitutional treaty, others will argue that what has been agreed is, more or less, the constitutional treaty (the argument of the ).

Last week was significant and gave many important and detailed markers, but it has also allowed a lot of room for negotiation. In terms of giving the citizen a clear idea of what is going on, forget it!

Let us take the , a hot issue for the UK.

The bottom line for citizens is whether UK laws can be struck down for violating European Union fundamental rights and when this can take place.

Well, the reality is that since 1990 national laws in quite wide areas of activity have been subject to European Union fundamental rights law. Only last December, for example, the UK was found to have violated them for designating an organisation a terrorist organisation. The charter is only one source amongst many of these fundamental right laws. Others include international human rights treaties and national constitutional traditions all of which are synthesised by the to generate its interpretation of a European fundamental right.

When do these laws apply? The remit of these fundamental rights laws seem to be extended by the latest agreement to cover national measures involving policing and judicial co-operation in criminal matters, as these policies are now to be treated in the same manner to other policies. This would be a significant extension, although the agreement does make clear that national security is the sole responsibility of member states.

So would the UK be subject to this – the extension of the remit of fundamental rights laws to policing and judicial co-operation in criminal matters - and to the Charter of Fundamental Rights? Well, we have an opt-out from the charter but not other fundamental rights norms... and here is the catch, all the charter claims to do is 'confirm' these other fundamental rights norms. It would be open to any court to find a violation of both sets of norms - and a violation of one would entail a violation of the other - and so the UK would still get caught. But this goes against the spirit of the opt-out, so maybe not...

But what about the opt-in to police and judicial co-operation in criminal matters, does it not protect us? It is true we will not participate in future legislation in these fields unless we wish. We are bound, however, by existing laws and decisions of the existing bodies (eg and ). Moreover, in relation to EU fundamental rights, these bind member states when they are acting within the field of EU law. Even if we have decided not to opt in to legislation here, we are still operating within this field (of police co-operation and judicial co-operation in criminal matters) and are therefore potentially bound by EU fundamental rights norms.

And one final spanner to throw in the works. The EU established a earlier this year to check EU legislative proposals are compatible with, among other things, the Charter of Fundamental Rights. Will the UK be bound by it insofar as its rulings on the charter affect EU legislation applicable in the UK?

Confused? There will also be a few civil servants scratching their heads..."

So is the cat alive or dead? Will we really not find out until October? And I do promise to start writing about something else soon. Possibly. I think I am turning into one of those people others steer clear of in the corridors of Westminster.

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