Wednesday, 26 November 2008

Treatise on the EU

An article by my good friend the Rev

The highest legal authority in the EC is the European Court of Justice sitting in Luxemburg. It has taken upon itself in its case law - whether legitimately from the treaties or not - to give effect to what it sees as the purpose of the treaties, rather than being governed by a strict reading of what the text of the treaties actually say. We have, here, a politicised law-making role for judges which offends the separation of powers. Judges are supposed to be impartial politically and to simply follow the text of any legal document. Gone is their political impartiality under an elected law-making body: They can now be regarded as a somewhat politicised judicial body, to teach us, magisterially, the spirit of the treaties. We have here echoes of the papal court which could depose both princes and parish presbyters; and which could dictate to everyone and ignore all, even national monarchs. Whatever the merits of a body such as this for furthering the goal of ‘ever closer union,’ a court of this kind is not the body to be entrusted with the protection of citizens’ rights and privileges; for the purpose of the treaty, its raison d’etat - ever closer union - trumps such things. If citizens’ rights get in the way of ‘ever closer union’ what will prevail in the eyes of the court?

Nothing could be worse, you would think, but the situation is compounded by the fact that the law-making powers of the Commission and Council, and the Court’s purposive or politicised approach to their interpretation, are deemed paramount - that is, they (in the view of the Court at least) override even the most basic laws of the Member States! The treaties are prudently silent on this point, as well they might be but the Court - in its case law - has explicitly asserted what the treaties may well have implied or rather disguised all along: a stupendous transfer of authority away from the citizens to a less than fully accountable combination of supranational and inter-governmental bodies above the constituent democratic States! It means that the court interpreting the disguised ‘purpose’ of the treaties - not explicitly set out in the treaties, of course - can legally undermine and change our national constitution and our most basic individual rights and freedoms! That is its view of its role and powers, at any rate, as expressed in its own case law. The highest English courts (the Court of Appeal and the Appellate Committee of the House of Lords) take a different view: In their views EC law, whether from the treaties or the case law of the European Court of Justice, is not in and of itself supreme over domestic law. EC law only takes precedence over English law by virtue of English law (the European Communities Act, 1972) lending them such precedence. The difference between EC supremacy and EC precedence is that the latter, being given by us, can be taken away by us if we repeal the delegating act. But the European Court of Justice says that its priority in England is due not to a delegating act of Parliament but to its own supremacy implied in the treaties - which, of course, if true, we cannot challenge without breaching the treaties and rebelling against them. This is a case of conflict of jurisdictions, not unlike the American civil war (1861-1865) as to who has the legal supremacy. One of the new factors in the EU Constitutional Treaty and in the Treaty of Lisbon is that, by treaty, EC (or EU) law would become expressly supreme - though even that would not operate in England without an Act of Parliament to begin with. Once such an Act were passed the legal waters would become more murky in allowing Parliament to repudiate what it has already acknowledged as supreme, and not merely having precedence here by our sufferance. We have, so far, not yet reached that stage - thanks to the Irish.

But we have already gotten a taste of the EC’s tyranny over our fishing rights and over British weights and measures. This is the thin end of the wedge: the European Arrest Warrant, the European Prosecutor, and the European Police Force (with the full diplomatic immunity from legal action of the EU’s supranational institutions) bode ill for a further erosion of civic freedoms. Any freedoms we may have left will then depend upon the unelected Court of politicised judges and the unelected Commission-Council meeting in secret conclave and able, between them, to make law by decree! Many have called this the ‘democratic deficit’. But is this being a little too generous? Rodney Atkinson calls it the new Fascism. Gorbachev has already referred to the EC as the ‘new Soviet Union.’ Whatever you may think about electoral accountability the current EC is a far cry from what Heath and Wilson told us about a Common Market! We need to be aware of what this combination may produce in the future - therein lies the danger both to us and to our posterity. Those who will not study and learn from history will surely repeat it. And Europe’s history has been one of absolutism as late as 1945 for Germany and 1992 for Russia. What is now going on in our name is surely a danger to us all; and the fact is that, whatever our party - as in the past, so now - we stand or fall as a Nation. Evaluating the European Community… … BEFORE IT IS TOO LATE!
To adapt the words of one Parliamentary motion, passed in the 1780s, against the Crown’s use of ‘patronage’ - money paid by the Government to influence how MPs would vote - we can say of the European Community that ‘...the influence of the EC has increased, is increasing and ought to be diminished’. The power of the EC institutions are now a creeping threat to civil liberties, the democratic rule of law, and popular participation in politics. The danger, comes in the following ways.

To begin with the European Community in its founding treaties did not recognise, and was not built upon, the basic principles of good government. These are, fundamentally, the substantial separation of the powers, functions, and personnel of the three branches of government with checks and balances between them, to stop the abuse of power by government and so ensure the liberty of the subject. In the 18th century the French philosopher, Montesquieu (1689-1755), outlined these powers as: the executive to make policies and carry on the business of government; a separate elected legislature to make the laws to which the government itself would be subject; and an independent and politically impartial judiciary to apply those laws equally to all. These are the principles of good government which first put in check absolutism on the continent, and then finally defeated it - absolutism being the opposite to government ‘ the people, for the people, and of the people.’ These principles of good government are what the unwritten British constitution is grounded upon, although government in Britain is drawn from the elected legislature (the House of Commons) and is in effect an emanation of the majority party within that body. Nonetheless the government cannot generally make, or unmake, law: its proposals (known as Bills) have to first run the gauntlet of the elected Commons and the revising chamber of the House of Lords; and though many of the Lords are appointed, they are independent of the Government inasmuch as they are not dismissible by them. But, since 1957, absolutism has been oozing back into Europe not so much through the Member States of the European Community - which are all required by the EC to be democratic - but through the supranational and inter-governmental institutions of the European Community that its Member States - by treaty and by laws - have put both themselves and their citizens under.

The European Community’s framework of government (its informal constitution, not to be confused with the proposed formal Constitution rejected by voters in 2006) is laid out in various treaties signed by the Member States since 1957 as interpreted by the European Court of Justice in Luxembourg - itself a creation of those treaties. That framework of governance, spread over a patchwork of treaties, is extremely complex and confusing to the uninitiated; and amounts to both an ambush and a trap for the unwary who have been sweetened into it - as has happened both with the populations and many of the politicians. But to the initiated its pattern, its purpose and intent, was always clear. From the start its purpose was to foist, in an undemocratic way, an undemocratic scheme of government upon us; and to do it in a deceptive way. At every step on the road to European integration an illusion of democracy would be maintained whilst its real power would be bled away. As Jean Monnet (1888-1979), one of the inspirers of the European Community, said, ‘Europe’s nations should be guided towards the superstate without their peoples understanding what is happening. This can be accomplished by successive steps, each disguised as having an economic purpose but which will eventually and irreversibly lead to federation.’ But what is unaccountable at its inception is doubly so, even trebly so, at its completion. A deceived democracy is no democracy at all. This is the great danger.

One of the main organs of EC government is the Council of the European Union, better known as the Council of Ministers. It is an inter-governmental body whose members are appointed and recallable by the governments of the Member States. It is therefore in some sense an instrument of the top politicians of the Member States and accountable to them but, in another sense, it is also above them if it can make a decision by unanimity or majority or qualified majority voting. But as well as being the chief executive body of the Community it is also the chief law-making body binding not just governments but citizens. Yet it is not elected by the public nor dismissible by them; it meets in secret; and, as it also controls the reins of policy, it thereby combines both the executive and legislative functions with secrecy! Montesquieu’s advice has been stood on its head! Council members are neither openly nor effectively accountable to their national Parliaments for the decisions they make in Council. On such a body they are immune; and such a body is collectively immune to make laws which the people do not want. Even our own Cabinet cannot do this: their proposals have to face the scrutiny of parliamentary opposition and the searchlight of public debate and accountability. And rightly so, for this is the very essence of democracy. However, unlike the British Cabinet, the Council of Ministers cannot propose new laws; it can only respond to legislative proposals put to it by another body, the Commission. It then becomes crucial to inquire as to whether the Commission is more electorally accountable to the ordinary people or no since its proposals, if passed by the Council, will bind us - our governments and our elected representatives.

The EC Commission has the task to draft new proposals to become law. The Council of Ministers can only pass or reject such proposals; it cannot amend them. So the Council which is so powerful towards ordinary mortals is beholden to the Commission. But the Commissioners are neither elected nor re-callable by the people either. They are appointed by the heads of government of the Member States but they are not dismissible by them. This in effect makes the Commissioners a high body independent of the electorates, the governments, the national parliaments, and the Council; and yet it has the chief power to formulate new law proposals which, if passed by the Council, will bind the governments, the elected parliaments and the people. The law-making process in the European Community is hardly democratic. Moreover under the treaties the Commission can only make proposals in one direction - ‘ever growing union’. The ship cannot turn-around. Though the Council can bring the movement in that direction to a stop, neither the Council nor the Commission can turn the ship around, whatever they or the peoples may think or wish - so much for popular sovereignty and flexibility. In addition the Commission is in effect a supranational body independent of and - like the Council - in some sense above the governments; it has the power to drag Member States before the European Court of Justice to ensure that they obey the law of the new empire. It also negotiates trade agreements with other States and the terms of accession for new applicants. Lastly the Commission draws up the yearly budget which is so bad in accountancy terms that it has not been passed by any professional auditor for several years. In all these roles this high unelected Commission is served by a very large bureaucracy paid for by taxes allocated to it from the populations of the Member States.

But what of the European Parliament which meets in both Brussels and Strassburg? This is mainly a consultative assembly and not a legislature at all. It is more akin to the powerless Dumas and Reichstags of the absolute monarchies of Europe before World War One. Its title as a ‘Parliament’ is a misnomer, obliquely intended to mislead us into thinking that the institutions of the EC are democratic when they are not. It is certainly elected, and accountable, to the electorate of the EC; but what democratic good is that if it cannot effectively hold the Council or Commission to account on their behalf; and does not have the power to make and unmake laws, as the agent the people, elected and accountable to them. Recently, the ‘Parliament’s’ powers have increased to the point where it has some input on law-making but this is a minor rather than a crucial and decisive input. The democratic deficit therefore remains, which means that the EC, though it is made up of democracies, is not itself democratic; and yet it is above its constituent democracies, thus nullifying their democratic effect in areas of its competence.

We have thus discussed both the legislative and the executive processes, in this new and grandiose entity, and have found that it has an independence beyond the control of the people; which ought to make any wise man (or woman) tremble, even though its powers and competences are for the present limited. Yet, given the power of the law over every citizen, what are we to make of its judicial processes? Here the picture is, we fear, as dark and foreboding; not so much in the powers that the EC’s legal system currently exercises, though these are growing, as in the principles upon which these powers are exercised; principles which lay down a route to destroy all the legal safeguards for their citizens which, over centuries, the Member States have built up.

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