I have received an email from Jonathan Dawid in response to my post here
I have posted it in full and also my reply….
Someone has pointed me in the direction of your resposne 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.”
Yours sincerely
Jonathan Dawid
99% is not in fact the balance of existing to new; however the point I am making is that none of the treaties since 1975 have been approved by the people of the United Kingdom. Therefore the argument advanced that the agreements are already in place is not acceptable, we are being asked to give our approval of the whole proposed constitution, not only those parts which are new; If we do not for instance wish to be citizens of the EU, then now is the time to make that clear etc. I do not suggest that if we vote No, that this will somehow magically remove the unasked for imposition of EU Citizenship, it will however give pause to the onward rush towards a united states of Europe, and remove from the process any claims of democratic legitimacy.
In any event the notion that we need not worry about the constitution, because it is only partly new, misses the point that that the parts which are new are designed to make this constitution the legal base and authority of rule from Brussels. It misses the point that the Constitution sets up the EU with its authority flowing from its own constitution not from the member states. It misses the point that the supremacy of EU law and constitutional law for the first time will be enshrined in a treaty.
Laws: “But the competences of the European Union have of course burgeoned very greatly; and the draft Constitution, by the increase of qualified majority voting, the re-shaping and the making of certain institutions, and the extension of Union objectives to the near universality, will set in place a structure whose over-arching nature at least seems to possess some of the attributes of a Stateâ€
The constitutional courts in Germany and Italy did not accept the principal of the Supremacy of EU law, EU law in fact had to reflect their Constitutional rights not the other way round, this principal was confirmed later with the Treaty of Maastricht, when the German Constitutional Court made it quite clear that it had not in any way‘ surrendered’ its jurisdiction in determining the applicability of secondary Community legislation in Germany, and only the German Constitutional Court is competent to decide that issue - and concern matters in which, in the opinion of the German court, the treaty gives it authority.
The constitutional court also made it clear that it did not accept as valid within Germany any Community legal act which had been adopted merely because of the ‘useful effect’ of Community powers and on the basis of a broad interpretation of this concept. It was therefore the task of the constitutional court to examine whether legal acts of Community bodies and institutions remained within or exceeded the limits of Germany’s sovereign rights.
So the EU Supremacy in Law is not as the British government would like us to believe something that we accepted as part of the EU treaties, it is something imposed by the ECJ and cannot have the effect the government say, of making all states obey the same laws because Germany, and to a certain extent Italy have refused to accept the principal, which must mean that it is entirely in our own governments province to either accept or reject any laws emanating from the EU
The proposed “constitution” will however formally enshrine the primacy of EU law. The British government claims that EU “law” is already supreme But that is not so. It is quite clear that the ECJ, which as a creature of a treaty among sovereign powers, cannot then tell those sovereign powers that they are no longer sovereign. And the German Constitutional Court, has on several occasions made it clear that German law is supreme in Germany rejecting the principal and the claims by the ECJ.
In Britain, we do not have a constitutional court the ultimate constitutional authority is the sovereign. It is perfectly open to the Queen to instruct judges, that it is their duty to disregard the pretensions of the EU unless the Crown-in-Parliament specifically tells them not to, and to try cases on the basis of the law of the land and on that basis alone. In so doing, she and her government would in no way be breaching the current EU treaty, for there is nothing in that treaty that supports the claims made by the ECJ.
We will not as you suggest, still have the common defence or foreign policy in the same way as we would have were the constitution to be ratified, because the constitution changes the basis of the treaty agreements, it for instance gives the EU the authority as an actor on the world stage, without the Constitution there can be no EU diplomatic corps, no EU Foreign minister, no EU authority to speak for the 25 states in the UN etc.
Leaving the EU, if you are correct that we would need the agreement of the other states and changes to the treaties to enable us to leave the EU, then of course the retention of that power to the Westminster government in 1973 has already been undermined, I have not actually been able to pinpoint the treaty agreement which removed that power from our own government. Withdrawal would obviously entail the renegotiation of international treaties, but the UK would be negotiating from the position of a sovereign actor in its own right and not as a supplicant member of a larger unit asking for the permission to leave.
ECJ, much of the wording in the Constitution is intentionally vague, this will mean that we do not and will not know the exact ramifications of the Constitution until the ECJ has been asked to rule. What the Constitution does is to place many more areas of competence within the jurisdiction of that court a court moreover which is compelled to full mutual co-operation with the Commision.
Laws “The Institutions shall practice full mutual co-operationâ€. Now, as is well known, the Commission is a frequent litigant before the Court of Justice. How can it be right for the Court to be placed under an express duty of “full mutual co-operation†with a party over which it is bound to exercise, in the course of sometimes hotly disputed litigation, an impartial and dispassionate judgment?
A Constitution does bind elected politicians that is the reason for it in the first place, if we do not have rules that are beyond the power of the elected house, then those elected politicians could ride roughshod over every one of our fundamental rights and dismantle the very base of their own authority, as we see this present government attempting. The point you are missing is that it is the elected politicians who tell the courts which laws to consider in the first place. It was this batch of elected politicians who told the courts to apply ECHR, they then ignored the rules they themselves put in place. The other point is that the ECHR does not force parliament to obey its rules they have the power to ignore the courts recommendations, or in fact to remove the ECHR from statue.
One further point about this ruling, is that by applying ECHR rules, it now seems in Britain that there is no difference between UK nationals rights and any other foreign nationals rights.
The whole reason for a constitution is to set up the state and give it authority to act for its citizens, it should be clear and concise and easily understood. It should set out the limits of the power of government and the rights of the citizens against that state. This constitution is a very bad attempt it does not limit the power of the EU it does not give unalienable rights to its citizens, everything is either left open for later decisions by the ECJ and or extensions of the power of the EU.
Gisela Stuart: “This Treaty establishing a Constitution brings together all that has been agreed in the past and introduces significant new changes in the EU. It will be difficult to amend and will be subject to interpretation by the European Court of Justice. And if it remains in its current form, the new Constitution will be able to create powers for itself. It cannot be viewed piecemeal; its sum is more than its partsâ€
To recap; we are being asked to give our consent to “this constitution†all of it, if there is anything in it with which we do not agree we should vote NO. Arguments that some of the clauses are not new and have appeared in some form or other in previous treaties, have no relevance to the debate on the desirability or otherwise of this constitution. As it is a constitution the whole thing is new, and event those clauses which have been transferred unchanged into this document, will have a different interpretation simply by being part of a constitution and not part of a treaty between sovereign nation states.
