Back in action

I spent the last two days closeted with spooks and ex-spooks at a conference that celebrated either the 100th or the 424th anniversary of this country's security services. A lot of fun was had by one and all but, alas, my attempts to get recruited failed. So, I shall be back in action as blogger and editor of Conservative History Journal this week-end.

Stuck on stupid No. 2

Some time ago we noted on this blog and on EUReferendum [link in the posting] that the Conservatives were retreating from a referendum on the Lisbon Treaty and chattering happily or not so happily about a "wider referendum" on repatriation of powers. Why, in the light of that, anybody was surprised by yesterday's developments is not clear to me.

The chatter is going on. I wrote about Open Europe yesterday. Today it is the turn of David Davis, the great hope, never realized, of the party's more libertarian right wing. His "eurosceptic" credentials are not in a particularly good nick, as he was a fairly tough Whip at the time John Major was pushing the Maastricht through against a good deal of Conservative opposition. (No, oddly enough, there was no referendum then, either, despite it being an enormously important document, constitutionally speaking.)

Subsequently he was Minister of State at the FCO with responsibilities for Europe. What we call demotically, Europe Minister. No worse than others, but certainly no better. Come to think of it, he must have taken a very big part in the negotiations that produced the Amsterdam Treaty.

The Guardian has a piece about him getting all stroppy again. It seems that the entire gifted political staff of that newspaper is incapable of grasping that we do not have a relationship with the EU. We are part of it. If we come out of it and it remains extant, we shall have a relationship.

David Davis's actual challenge is in the Daily Mail and it seems to me to be as much of a damp sqib as his infamous resignation and by-election turned out to be.

What we should do is, in my view, clear. We should have a referendum, not on the treaty, but on the negotiating mandate that the British Government takes
to the European Union.

This has many virtues. It allows the British people to express their view on the future of their nation. Most of all, it gives the Government a formidable negotiating weapon.

He then chatters on a bit about how much the EU hates referendums (unlike the Conservative Party, we assume) and comes to what might be called the substance:

The question should contain four or five specific strategic aims which clearly summarise our objectives.

The sort of things we might include are: recovering control over our criminal justice, asylum and immigration policies; a robust opt-out of the European Charter of Fundamental Rights; serious exemptions to the seemingly endless flood of European regulations which cost the UK economy billions of pounds each year; a recovery of our rights to negotiate on trade; exemption from European interference into trade in services and foreign direct investment rules; and an exemption from any restrictions on our foreign policy.

There's a nice broad selection of subjects to ask people about, all in different sections of the treaty and regulated by different constitutional (may as well use that word as it is accurate enough) rules. You can have a referendum on any or all of them to your heart's content. The question of how and with whom those negotiations should be conducted remains open. And yet Mr Davis, former Europe Minister ought to know the reality of those negotiations. Or did he simply lounge his way through his years at the FCO?

Just to be on the safe side, he does inform us all that it is not an in/out referendum and nobody should even think of that. Especially not the colleagues who must be laughing their heads off.

Nor is he suggesting that we should get rid of the supremacy of European law. Stuck on stupid, again.

This is no time to imitate Obama's supporters

David Cameron's supporters seem determined to become the sort of angry joke Obama's supporters are. They cannot cry racism every time somebody attacks the Boy's politics but there is plenty of shrill complaining. Accusations of mud-slinging, extremism, the usual europhobia (whatever that might mean), unseemly gloating (on the part of UKIP) and party disloyalty (for unhappy Conservatives) are being slung right, left and centre, though mostly right.

I have news for these people. Politicians can and must be criticized and even attacked on political matters; prevarication needs to be shown up for what it is; and very many people feel that they have given the Conservatives their last chance on matters European. Stop screeching and start thinking. Why are you in this mess? How can you get out of it.?

Besides, this is no time to start imitating Obama or the Obamabots. The election results from across the Pond would indicate that the voters are not happy. Republicans have won gubernatorial elections in Virginia and New Jersey, retaking the states by susbtantial margins. The President had campaigned personally in both states. But then, he also went to Copenhagen to campaign for Chicago in the Olympic bondoogle.

In NY-23 an unknown independent conservative not only managed to push the very left-wing official Republican candidate out, but also came within three points of winning the election. Despite the sudden flurry of support from the White House and the former Republican candidate (who showed her true colours and embarrassed the GOP leadership very quickly) the Democrat, Bill Owens, won on a thin majority. A majority is a majority, thin or not, but yesterday's elections are not happy ones for the Democrats or for the man who seems to have believed his own hype. Mind you, as Michelle Malkin points out, this is no time for the Republican establishment to gloat either.

Just to show how very gauche the White House is, in its political image-making, "White House officials insisted that Mr Obama would be watching a basketball game and would not pay any attention to the results coming in". Gubernatorial elections in the United States matter. To display such contempt (whether genuine or not) for the electoral process will annoy the people even more.

This is not a good time for the Toryboys of both sexes to imitate Obama's team. Contempt for the electorate followed by whining and spiteful attacks on all critics is a bad recipe for political success.

Stuck on stupid

As the news comes that President Vaclav Klaus has decided not to save the Conservative Party's bacon I find myself inundated with messages from various Conservatives about the pointlessness of having a referendum once the treaty has become law and not slamming stable doors (or, maybe, closing them after all) once the horse has bolted as well as the need to mover forward. Roughly what they say every time and they wonder why they cannot break the 17 point lead towards the third term of a deeply unpopular government.

The Boss has dealt with the issue of symbolism over on EUReferendum and has been following media reactions. Wouldn't catch me doing things like that.

There is also a great deal of hysteria around with people wailing like lost souls in the way they did when I first became involved in euroscepticism over the Maastricht Treaty. For everybody's information, nothing is ever over; this is not the end of the world; the EU is not the Soviet Union and even that was brought down by people refusing to support it any more.

Nor am I particularly impressed by people's snide comments about Klaus's lack of backbone, being a traitor and being paid off. This usually comes from people who have not done anything much in the fight. Let us not forget that President Klaus held out as long as he could. He found himself opposing both elected Houses of the Czech Parliament and by the Constitutional Court. No democratic president can persist in that sort of opposition.

Meanwhile President Obama welcomed the Constitutional Lisbon Treaty in fulsome terms. To be fair to the man (and you do not often hear me say this) he probably has not the faintest idea what he is talking about. The man who maintained that Austrians speak Austrian and his uncle liberated Auschwitz is unlikely to grasp that Europe is not actually a country and never has been.
Are we about to hear from the Conservative eurosceptics who supported him because he was not in favour of European integration? Step forward Daniel Hannan MEP, with whom I had a fierce argument on the eve of the American election last November. McCain has form, he insisted, whereas Obama would see that European integration was not in America's interests. We must support him. Obama, I retorted, will see what the State Department will show him.

The prize for stuck on stupid must go to that Conservative Party front organization, Open Europe. Their press release is so unbelievably silly and ignorant that it deserves quoting in full:

Open Europe calls on Conservatives to pledge a referendum on EU reform

Following President Klaus' signature of the Lisbon Treaty today, Open Europe calls on the British Conservative Party to now pledge to hold a referendum on reform of the European Union.

The potential election of a new Conservative government will coincide with the opening of EU budget negotiations, where discussions will be held about how much each country should pay into the EU over the period 2014 to 2020.

The UK has a veto over these negotiations, and should be prepared to use it to fight
for a package of reforms which must be fleshed out between now and the election.

This Reform Package should be put to the British people in a referendum, with a question along the lines of: "Are you in favour or against withholding agreement to the EU budget until the European Reform Package has been adopted?"

Tomorrow, Open Europe will publish the first in a series of papers looking at which policy areas the Conservatives should propose to tackle, and how. The first paper will look at EU social and employment policy, which currently accounts for a staggering 25 percent of the total cost of regulation in the UK.

Open Europe Director Lorraine Mullally said:

"Now that Lisbon is a done deal, the Conservative Party must pledge to hold a referendum on EU reform. They must not follow Labour and the Lib Dems and go back on their promise to give people a say on the future of the EU."

"The public are crying out to be consulted. The Conservatives should now announce a referendum on a package of meaningful EU reforms which they should draw up carefully over the next weeks and months. Linking their ideas for reform to the EU budget, a Conservative government could be in a strong position to work with key allies in Europe for a better, more democratic and modern European Union."

"A simple 'manifesto mandate' for these things will not be enough - people want
their long overdue say, and the Conservatives should give them it. A
strong mandate from the people will strengthen the Conservatives' position in
Europe when the time comes."

As fine a piece of muddle and prevarication as you would ever find in politics. Let me try to explain though I know that Open Europe is so sure of its position and righteousness that they tend to ignore any factual argument.

You see, we are not in a position to reform the EU. It can be done only by an IGC with a unanimous agreement to re-write the treaties. Do we really think that the other 26 members will simply agree to some ridiculous reform package that Open Europe and the Conservative Party work out between themselves? What happens if they don't? Go on vetoing the Budget? Where does that get us? We still need an IGC for that reform.

Get used to it. This will be the Conservative Party's line. But a few simple questions usually destroy their smugness. It's alwasy a pleasure to see Toryboys get really annoyed because they are in the wrong.

They should all have a look at Der Spiegel, which is gloating over the collapse of all opposition to the Treaty. In the interests of the narrative, though not the truth they tell us that "in the wake of the court's decision in Prague there has been a widespread relief across the Continent". Not precisely. There may have been widespread relief across the chancelleries of the Continent and I am not sure that even that is true. Some people at the top may have realized that there was a reason why this whole process has been so long and so painful and why none of them have dared to ask the people whether they agreed.

I look forward to hearing lamentations very soon about the gap between "Europe" and "the people", which surprisingly enough will have widened in the last eight years.

What did they get?

A note from Anthony Coughlan in which he analyzes tentatively, because that is all we can do at this stage, the difference in what Ireland got from the EU and what the Czech Republic got. My view remains the same: none of it is worth a dime. I think Professor Coughlan may not disagree too much. Here is the text in full:

Different promises for the Czechs and the Irish to secure the ratification of the Lisbon Treaty
Dublin ... Sunday 1 November 2009

Czech and Irish opposition to ratifying the Lisbon Treaty has been dealt with by different political promises that are supposed to be embodied in the next EU Accession Treaty.

This can be seen from the text of Friday's October European Council Conclusions, as compared with those of June last, which prepared the way for the Ireland's second Lisbon Treaty referendum. Relevant excerpts are given below.

The Czechs have been promised an opt-out from Lisbon's Charter of Fundamental Rights at some future date, even after the Charter has become legally binding on them as a result of Lisbon coming into force. A Draft Protocol that could - or might - do this when the time comes is annexed to last Friday's European Council Conclusions.

Last June the Irish were given interpretative declarations on concerns such as tax, abortion and neutrality and were promised that these would be embodied in a future Accession Treaty Protocol. In contrast to the promise to the Czechs, no draft of such a Protocol was agreed, but the European Council Conclusions stated that it "will clarify but not change either the content or the application of the Treaty of Lisbon" (See text below).

So the Czechs have been promised a real change in the Lisbon Treaty at some future date, and an actual draft of such a Protocol has been drawn up to keep them happy while President Vaclav Klaus permits the ratification of Lisbon. The Irish have been promised a draft Protocol to meet their concerns in some future EU Accession Treaty, but the promise has been accompanied by a statement that this Protocol will not change anything in Lisbon.

Will these promises be fulfilled?

There is no problem with the Irish. Their promised future Protocol will be redundant anyway, for it will not change anything which is already contained in Lisbon. This qualification was explicitly made when this future Protocol was first mooted.

The promise to the Czechs is more problematic, for the following reasons:

1. When the next EU Accession Treaty comes around the Czech Government then in office may no longer wish for a full opt-out from the EU Charter of Fundamental Rights, either because it takes a different view of it from the present Czech Government or because of domestic opposition at the time to such a step, in particular from the Czech trade unions.

2. The main Hungarian Opposition party, Fidesz, which is expected to win next year's elections in Hungary, has stated that it will vote against ratification of the EU's pledge to give the Czechs an opt-out from the Charter of Fundamental Rights because of its concern over Hungarian property claims arising from the post-World War 2 Benes decrees; and any such opt-out would have to be unanimously agreed by all Member States when they come to ratify the future Accession Treaty to which it was attached.

3. Czechs, Germans, Hungarians etc. will all become citizens of the constitutionally new European Union which would be established by the Lisbon Treaty once that Treaty comes into force. In implementing Union law at national level thereafter the Member States will have to recognise the EU citizenship of their national citizens and the rights and entitlements as EU citizens which their national citizens will acquire under the Charter. It would be open to all EU citizens - Germans, Hungarians, Czechs or whatever - to institute legal actions and claims under the Charter of Fundamental Rights immediately the Lisbon Treaty comes into force, including property claims arising from the Benes decrees - and to expect that such actions would be justiciable in national courts as actions of EU citizens. If legal actions over such claims are already instituted under the Charter, it is hard to see EU Governments whose nationals are involved in such legal actions agreeing to ratify an Accession Treaty one of whose purposes would be to make such actions invalid or ultra vires.

4. The Heads of State or Government who will be in office when the next EU Accession Treaty comes up for ratification will be different from the present group. There is no guarantee that they will all feel similarly bound by the political commitment regarding the Czechs given by their predecessors the other day, not least because the legal status of the European Council itself will be changed by the Lisbon Treaty. For Lisbon proposes to make the European Council into an EU institution for the first time, whose actions and failures to act would thereafter be subject to review by the Court of Justice. It is arguable therefore whether the present European Council can bind a future one based on a different legal constitution in the way that is proposed in last Friday's EU "summit" Conclusions.

_______
October 2009 European Council Conclusions ... Excerpts re the Czech Republic

2. The European Council recalls that the entry into force of the Treaty of Lisbon requires ratification by each of the 27 Member States in accordance with their respective constitutional requirements. It reaffirms its determination to see the Treaty enter into force by the end of 2009, thus allowing it to develop its effects in the future.

On this basis, and taking into account the position taken by the Czech Republic, the Heads of State or Government have agreed that they shall, at the time of the conclusion of the next Accession Treaty and in accordance with their respective constitutional requirements, attach the Protocol (in Annex 1) to the Treaty on European Union and the Treaty on the Functioning of the European Union.

In this context, and with regard to legal application of the Treaty of Lisbon and its relation to legal systems of Member States, the European Council confirms that:

a) The Treaty of Lisbon provides that "competences not conferred upon the Union in the Treaties remain with the Member States" (Art.5(2)TEU);

b) The Charter is "addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law" (Art 51(1) (Charter)

ANNEX 1:
PROTOCOL ON THE APPLICATION OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION TO THE CZECH REPUBLIC

The Heads of State or Government of the 27 Member States of the European Union, taking note of the wish expressed by the Czech Republic,

Having regard to the Conclusions of the European Council,

Have agreed on the following Protocol:

Article 1
Protocol No 3o on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom shall apply to the Czech Republic.

Article 2
The Title, Preamble and operative part of Protocol No 30 shall be modified in order to refer to the Czech Republic in the same terms as they refer to Poland and to the United Kingdom.

Article 3
This Protocol shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union.
________
June 2009 European Council Conclusions ... Excerpts re Ireland

The European Council also agreed that other concerns of the Irish people, as presented by the Taoiseach, relating to taxation policy, the right to life, education and the family, and Ireland's traditional policy of military neutrality, would be addressed to the mutual satisfaction of Ireland and the other Member States, by way of the necessary legal guarantees. It was also agreed that the high importance attached to a number of social issues, including workers' rights, would be confirmed.

4. Against this background, the European Council has agreed on the following set of arrangements, which are fully compatible with the Treaty, in order to provide reassurance and to respond to the concerns of the Irish people:

(a) Decision of the Heads of State or Government of the 27 Member States of the European Union, meeting within the European Council, on the concerns of the Irish people on the Treaty of Lisbon (Annex 1);

(b) Solemn Declaration on Workers' Rights, Social Policy and other issues (Annex 2).
The European Council has also taken cognisance of the unilateral declaration of Ireland (Annex 3), which will be associated with the Irish instrument of ratification of the Treaty of Lisbon.

5. Regarding the Decision in Annex 1, the Heads of State or Government have declared that:
(i) this Decision gives legal guarantee that certain matters of concern to the Irish people will be unaffected by the entry into force of the Treaty of Lisbon;

(ii) its content is fully compatible with the Treaty of Lisbon and will not necessitate any re-ratification of that Treaty;

(iii) the Decision is legally binding and will take effect on the date of entry into force of the Treaty of Lisbon;

(iv) they will, at the time of the conclusion of the next accession Treaty, set out the provisions of the annexed Decision in a Protocol to be attached, in accordance with their respective constitutional requirements, to the Treaty on European Union and the Treaty on the Functioning of the European Union;

(v) the Protocol will in no way alter the relationship between the EU and its Member States. The sole purpose of the Protocol will be to give full Treaty status to the clarifications set out in the Decision to meet the concerns of the Irish people. Its status will be no different from similar clarifications in Protocols obtained by other Member States. The Protocol will clarify but not change either the content or the application of the Treaty of Lisbon. (emphasis in bold added)

Differences

People do wonder why I am so interested in American politics, while so much of the stuff in Britain leaves me cold. Well, here is an example of what makes it more interesting.

In Britain the Conservative Party is getting all into a tizz over Elizabeth Truss (too many links but Iain Dale, ConHome and Shane Greer have all been writing endlessly about it and ... well, OK, here is one), who had been chosen to be PPC in South West Norfolk. The local association, having never heard of Mr Google or the possibility of finding out certain facts about a candidate on the internet realized belatedly that Ms Truss had an affair with a Conservative MP about four or five years ago. At the time both were married but he, Mark Field, has since divorced because of that or some other reason. He is also no longer the Culture Spokesman, which is probably just as well.

Round and round everybody goes: Do private lives matter more than political achievements? Do affairs long in the past matter? Should he be forced to resign if she is deselected? Should idiots who have never heard of Google be in charge of selecting candidates? Does anybody outside the magic circle care? Well, actually, I know the answer to that last question.

Now compare and contrast this with the saga of Republican nominee in NY 23rd Congressional District, Dede Scozzafava who has just been forced to resign and start supporting her conservative rival by the GOP grassroots, led by the bloggers such as Michelle Malkin. Here is Melissa Clothier analyzing the story in terms of identity versus conviction politics. Here is Rick Moran giving a summary of what happened and there are some interesting comments.

I don't think I need to add anything of my own to the NY-23 story except to point to the main difference between that and the SW Norfolk story: the American one is about politics. What we are seeing is a new movement, that may attach itself to the Republicans or may not, of people who are, roughly speaking, conservative and believe in what one can describe as American virtues (many of which are Anglospheric virtues and even Western virtues so we should all be paying attention). It is important to watch developments. Who really cares about the endless personal tittle-tattle that surrounds people unable to see a political idea in front of their noses?

Updates

First, the good news from Iceland (at least for Icelanders). It seems that the political class there is beginning to grasp that no matter what they do, the people of that country, do not want to go into the EU and, most certainly, do not want to be in the euro.

That inestimable blog, EU News from Iceland, tells us that a former Foreign Minister as well as the present Finance Minister have cheerfully admitted that “although his government had applied to join the European Union the Icelandic people didn't want to become members”. They, of course, will have the chance to say so as Iceland cannot join without at least one referendum. If the process ever gets that far with the political classes already rather worried.

For all of that, Hjörtur J. Guðmundsson and his colleagues in the anti-EU movement are not taking anything for granted and continuing with their work. Needless to say, I have offered any help we can give.

Meanwhile, as we predicted, Blair’s chances of getting that first Presidency are getting so slim that even the British media is beginning to grasp the unlikelihood of the scenario they had produced. I suspect the same will turn out to be true about David Miliband’s supposed candidacy to be the first Foreign Minister of the European Union, despite the Independent assuring us that he is backed by Commission President Barroso. He is also backed by Number 10, we are told, and how useful is that? And our other prediction about Cameron not giving a referendum has also come to pass as the Boss has pointed out.

Moving across Europe to the Czech Republic, it seems very likely, as we also predicted, that President Vaclav Klaus will sign the Constitutional Lisbon Treaty after getting the EU leaders to agree to his opt-out from the Charter of Fundamental Rights.

Luboš Motl on The Reference Frame, a very interesting Czech blog, accepts that the battle has been lost but there is, as he so rightly points out, a war to be won. I only wish more people in this country would be so clear-sighted.

Mr Motl, incidentally, points to what he sees as another division between Western and Eastern Europe and that is the amount of money to be spent on the whole climate change charade.

West is more enthusiastic because it has spare money to waste for nonsense, and it is not immune against utopias for the future - because of the lack of experience with communism.

That makes some sense but, as it happens, I do not think anybody has all that much “spare money to waste for nonsense” at the moment.

Another matter on which I would disagree with Mr Motl is those opt-outs. He thinks President Klaus “will save my homeland from many policies that go well beyond the fear of the returning Sudeten Germans (a topic that Klaus has used to be sure about the public support”). I think that is very questionable.

What the Presidency Conclusions actually say in Article 2 of Section I is:

On this basis, and taking into account the position taken by the Czech Republic, the Heads of State or Government have agreed that they shall, at the time of the conclusion of the next Accession Treaty and in accordance with their respective constitutional requirements, attach the Protocol (in Annex I) to the Treaty on European Union and the Treaty on the Functioning of the European
Union.

In this context, and with regard to legal application of the Treaty of Lisbon and its relation to legal systems of Member States, theEuropean Council confirms that :

a) The Treaty of Lisbon provides that "competences not conferred upon the Union in the Treaties remain with the Member States" (Art. 5(2) TEU);

b) The Charter is "addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law" (Art. 51(1) Charter).

In other words, nothing that has been agreed now has any legal validity until the next Accession Treaty, probably one for Croatia. This is precisely the case with all those statements that were added for the benefit of the Irish. None of it is worth on the paper it is written on, despite the fact that the paper is, presumably, recycled, untreated and ready to be used for non-fossil fuel.

Secondly, it is not exactly clear what the opt-out is precisely. The Presidential Conclusions merely confirm what is already in the Charter. We get a little more in this news item in which the Swedish Presidency in the shape Fredrik Reinfeldt announced that the last hurdle has been cleared and the Czech President’s request granted.

With this decision the Czech Republic has received the same exemption as Poland and the United Kingdom, from 'protocol 30' in the Lisbon Treaty's Charter of Fundamental Rights.

This is what we are talking about: Protocol 7, snappily entitled ON THE APPLICATION OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION TO POLAND AND TO THE UNITED KINGDOM.

After a great many whereases and raffirmations we get to what was agreed for Poland and the UK and will be agreed for the Czech Republic after the next Accession Treaty:

Article 1
1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.

Article 2
To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.

What that will mean in practice, given that the law and practices of EU member states are already defined largely by what comes from the EU, is not really clear to anyone as yet. But a semi-allowance for the Czech Republic to join this rather dubious exemptions will, we assume, be enough for President Klaus to retreat with good grace, particularly if he can spin it as to mean that no German, Austrian or Hungarian will be allowed to claim back the land that had belonged to the family in question before 1947.