Are we fools led by liars?
A letter in the Times from a certain Jonathan Dawid takes William Rees-Mogg to task for discussing the EU Constitution
Are we fools led by liars? February 28, 2005
“WHO’S GOT it right? The German Minister for Europe, Hans Martin Bury, or the Foreign Secretary of the United Kingdom, Jack Straw? Last week Herr Bury told the Bundestag that the constitution of the European Union is more than a “milestoneâ€, it is “the birth certificate of the United States of Europeâ€. Last month Mr Straw said that the constitution treaty signalled “thus far and no further on European integrationâ€. Is the treaty a boundary marker for European integration or is it a birth certificate for “a single European state bound by one European constitutionâ€, to use the language of the German Foreign Minister, Joschka Fischer?â€
Neatly side stepping the arguments posed in the article, Dawid employs the old Europhile trick of clouding the waters with nonsense and lies.
Sir, William Rees-Mogg has read the proposed EU constitutional treaty, but he must also examine the mass of treaties it is designed to replace.
The supremacy of European law over national law? This is part of the founding Treaty of Rome in 1957.
No it was not, the concept of EU Law supremacy is the result of the ECJ own decision and was established by the Court of Justice in 1963, when in the notorious Van Gend en Loos judgment, ECJ judges magically found that European law had direct effect on its citizens, ECJ judges magically found that European law had direct effect on its citizens, and the Treaty of Rome constituted a new legal order.
This concept has never been part of any EU treaty and is subject to several challenges in national constitution courts, Germany for instance has refused to accept the principal. So the constitution is codifying the concept for the first time, however even then it cannot affect ultimate supremacy in Britain because the British Parliament retained its ultimate supremacy in that it could repeal or supersede the 1972 Accession Act.
Co-ordination of economic and employment policy? Rome again. Establishment of the European Union? It’s in the Maastricht treaty of 1992. Maastricht also gave us citizenship of the Union and the common defence and foreign policy.
We are being asked to accept what is in the Constitution we were not asked for our vote on the other treaties, which had the effect of changing the trading union we accepted in 1972. Also the Constitution has the effect of removing all the current treaties replacing them, so if we do not want EU Citizenship and all that entails, or a common defence and foreign policy, we should vote No. It is no argument to claim that these moves towards integration are from an earlier treaty, which we did not have the opportunity to either accept or to reject.
When Lord Rees-Mogg says “Whenever one dips into the constitution one is liable to sink into a bog of unexamined propositions. I cannot think of any document of comparable historic importance which raises so many questions or answers so few. As an American scholar has observed, the European constitution, if it were American, would raise numerous Supreme Court cases in every paragraphâ€.
Making it clear that so many things in the Constitution are not defined in any meaningful way and will require judgments by the ECJ, it is then stupid to claim the exact opposite without evidence to back up that claim.
We should be grateful for its detail, for the shorter a constitution, the more power is concentrated in the hands of judges rather than elected politicians. And we should be perfectly clear that whether or not the constitution is accepted, the great majority of its proposals will remain in force, as they have been for many years.
Jonathan Dawid has written to the Times before making the ridiculous claim that “Any person who believes that Britain would be better off outside the Union must therefore vote in favour of the constitution, as this would allow a future British parliament to leave the Union†and falsely claiming that for “Britian to leave the present Union would require a new treaty drafted for that purpose — a treaty which would have to be ratified by all 25 member states.†this is turning the argument on its head, why on earth would a country that already has the ability to leave wish to change its own constitution for the EU constitution, which puts conditions on that power and will require the other 25 states to ratify that agreement.
Rees-Mogg says there is a debate to be had about the EU “We could have a useful debate on these issues. Is it Europe’s destiny to become a superstate? Is the age of British independence at an end? Can we protect democracy and the rule of law in a fully united Europe? That would be an honest and historic debate. But it cannot be an honest debate so long as the Government pretends that the European constitution is anything other than a constitution for the United States of Europe. The Germans are telling the truth. So long as our Government takes us for fools, we have every reason to take them for liarsâ€.
Dawid obviously falls in with those who take the British public for fools, we would be well advised to follow Rees-Mogg`s suggestion and take them as liars.
Someone has pointed me in the direction of your response to my recent letter in the Times. I am afraid that you have rather missed the essential points of my letter (and my previous letters on the subject). The first point is that 99% of what is in the proposed constitution - and of what most eurosceptics oppose in it - is in fact already part of EC law and is already applies in the UK. The second point - and perhaps this is what most people fail to appreciate - is that if the constitution is rejected, the EC does not self destruct. It simply carries on under the same treaties as before. So when you write “Also the Constitution has the effect of removing all the current treaties replacing them, so if we do not want EU Citizenship and all that entails, or a common defence and foreign policy, we should vote No”, you are not merely misleading, but plain wrong. If you vote no, then you will still be an EU citizen with a common defence and foreign policy, and all the rest. Aside from the ego boost, you’d be stuck with the status quo.
So what would a “no” vote mean, in legal terms? A handful of areas would stay as requiring unanimity rather than qualified majorities, true. You could characterise this as giving more power to the EU, in that ther UK would lose its veto. Then again, you could characterise it as meaning that the UK will no longer be stymied by French and German vetoes in areas where the UK wants to see more movement. And of course, without the constitution there is still no exit mechanism from the EU. Yes, of course the UK could unilaterally declare itself no longer a member and cease enforcing EU law within its borders. But in international law this would not end the UK’s membership - it would simply make the UK in breach of the EU treaties. For example, Spanish fisherman could go on fishing in UK waters and call on the Spanish navy to defend them - because under the international law of the EC treates they would have that right. And since the EU negotiates as a block on all external trade matters, non-EU countries would be perfectly within their rights to insist that the UK comply with whatever trading rules the EU agrees with. So if you want to leave the EU, don’t poo-poo the need for a lawful mechanism to do so.
I also find it odd how so many people who are against the constitution compare it to the US constitution, as if a US-style constitution would make it somehow more acceptable. But it also shows a lack of understanding of US constitutional history. After all, the US constitution does not explicitly give the Supreme Court power to strike down acts of Congress - as with van Gend en Loos in the EU, that was a judicial creation. But most laughable is Rees Mogg’s “criticism” that “As an American scholar has observed, the European constitution, if it were American, would raise numerous Supreme Court cases in every paragraph”. That may well be the case - however any American would also tell you that the US constitution remains a Supreme Court battleground after almost 250 years. It is precisely sweeping drafting of the kind seen in the US constitution that has given the Supreme Court the ability to rule on matters from abortion to gun ownership, without letting elected politicians have any say on the matter. It is precisely the history of the Supreme Court that lead the (British) drafters of the European Convention on Human Rights to be far more specific in the rights granted and any limits to those rights than were found in the US constitution - in order that politicians should not have their hands tied more than necessary. (If you think that it is ridiculous that the ECHR restricts how the British government can deal with terrorist suspects, then you should reflect that the US government is far more restricted - that’s why it set up Guantanamo bay, as a way of bypassing the constitution which guarantees even terrorist suspects fair trials and habeas corpus.) And that is why I wrote that “We should be grateful for its detail, for the shorter a constitution, the more power is concentrated in the hands of judges rather than elected politicians.”