A living treaty
I gave a talk to some teenagers at a local school yesterday and I was stressing that at the heart of journalism is the ability to keep asking questions until you get a clear picture.
Taking my own advice has, I think, driven me half-mad.
In the dead of Friday night/Saturday morning, getting my hands on the was the Holy Grail. Or perhaps elusive Holy Writ, for we pored over it, thirsty to drink the truth.
Now it lurks malevolently on my desk, glowing and defying interpretation. Of course, when I really need to quote from it, it has gone.
After 17 years before the mast at Westminster, I am well aware that most stories are a battle for interpretation. Grammar schools - good or bad? Weapons of mass destruction - did they believe they existed or not? And so on.
But this treaty is something else altogether. When in that dead of night I wrote that Britain’s safeguards on foreign affairs and the charter of fundamental rights were there in black and white and it would be pretty hard to quibble with them, I felt I was on safe ground.
But Neil O Brien, the director of (a pretty amazing outfit, the core of the old "No" campaign with a fairly clear Eurosceptic agenda but with a meticulous and hyperactive research department that makes some other think-tanks look slow off the block) wrote to me privately and politely pointing out they did indeed quibble rather strongly.
And so do the Conservatives. And then Tony Blair seemed to say in the Commons that in fact they were legally binding because , which nobody had seen, which said so.
Incidentally, David Cameron did say something about Tony Blair’s sweet-smelling trousers, didn’t he? I’m sure he said .
Or take the loss of vetoes. Tony Blair says there are . Some opponents say 68. The 91Èȱ¬â€™s research department thinks it’s 32. Usually I would trust that as a solid fact, but I can’t when it’s a matter of political debate.
The scale of the problem became apparent when we asked one legal firm specialising in EU law to call it for us. Or, more realistically, say that it would be a field day for lawyers. Er. Um. They wouldn’t want to go that far. Or Not.
And then a senior academic was interview on our behalf in Britain. I won’t name him, partly for reasons of libel, but mainly because I don’t know his name. But I watched open-mouthed as the interview (never broadcast) was fed into Brussels.
He maintained that the treaty didn’t mean very much as it was only a very rough outline and the civil servants in the inter-governmental conference would decided what it really meant.
This is true of most IGCs but in this case is plain wrong, according to everyone I have talked to. But maybe he’ll turn out to be right after all.
I feel like I’m in a Terry Pratchett novel where, by the altering strength of belief and doubt, a document takes on a life of its own and changes its text depending who reads it, developing a will of its own.
Maybe it has acquired a single legal personality.
I’m Mark Mardell, the 91Èȱ¬'s North America editor. These are my reflections on American politics, some thoughts on being a Brit living in the USA, and who knows what else? My 
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But this is nothing new, Mardell dear!
Europe has been a storage tank for blather for longer than I care to remember! It is the best example of a horse designed by committee that I can quote.
But fret not, because strict translation is irrelevant, for either side will interpret as needed by their own special flavour of Dogma.
The Tories, for instance, were NEVER going to say "Oh, actually it is fine." They were always going to say it was wrong for the country.
Likewise, the Daily Express were always going to say TB had sold us out. Even if he had come back with a treaty that said "from now on, ALL European decisions will be made by the UK parliament," they would still have shouted "Traitor!"
Even the Lib Dems would rather be hung, drawn and quartered than agree with anything the PM did.
And those who think that it really is all right are just being told to shut up and to stop spoiling the lynching - er, I mean party.
So, worry not about what it all means - just get ready to duck in the right places!
Nobody
Of course a document takes on a life of its own. That what law, intellectual history and post-modernism are all about. I'm rather concerned that you didn't understand that at the outset.
It always comes back to Humpty Dumpty in Alice...
All very nicely (and amusingly) written Mark, but this is just about as serious a political issue as you can get.
Why do you think the document is opaque?
Because it was designed to be, deliberately!
"We made a real effort to be opaque," one senior negotiator boasted. Several countries - notably Britain, France and the Netherlands - had insisted the result must look nothing like a constitution to avoid having to hold a referendum, he said.
Will you and the other political hacks start taking this stuff seriously?
The last vestiges of our nation's ability to govern ourself are being given away, while you lot daydream wistfully.
Mark, the academic you refer to is partly correct. The text agreed on the weekend is not a Treaty by itself -- it is a mandate for negotiations which has to put into Treaty form by the forthcoming IGC (Intergovernmental Conference), as the main European Council conclusions make very clear (see para 11 of the conclusions, referring to a draft Treaty text to be submitted before the end of July).
Having said that, he is incorrect in that much of the text of the mandate contains detailed legal language, and since the mandate also specifies that most of the text of the Constitutional Treaty will be retained and simply inserted into the existing Treaties, the IGC will not have much work to do. That is why the Portuguese plan to wrap it up in October.
But there may be some issues arising from the 'cut and paste' of the Constitutional Treaty, since it had a different structure than the current Treaties.
Also, the mandate leaves a few issues open -- ie point 11 of part III refers not just to a (clearly drafted) opt-out for the UK from EU policing and criminal law, but also to the possibility that certain other complex issues relating to the UK's opt-outs 'may' be discussed at the IGC.
Mark
what you have just said is just one of many reasons why there should be an IMMEDIATE REFERENDUM on the so-called "Reform Treaty", which is no more nor less than a glossed-up version of the EU's old so-called Constitution. That's the Irish government's official view, & why they have just announced that are going to have a referendum on it. It's also how the Finnish & Spanish governments are already explaining it to their citizens.
Another good reason is a basic one of democracy. If no one can understand such an important document, where up to 68 national vetoes it seems will be removed by this proposed treaty from sovereign member states & granted to the new EU "super-state", then the pure obfustication in the drafting of the document deserves its presentation to the electorate in an IMMEDIATE REFERENDUM. If the voters like its obscurities, they may well vote for it. And if they distrust its excessively opaque language, they will probably REJECT it! And that's what democracy is all about! Fair comment, Mark?
This is all very interesting stuff, but what exactly is the outcome of all of this navel gazing, and when is there likely to be any kind of action other than agreeing legal text ?
This has and will continue to carry on for years to come, with no clear gain to any of the European participants, other than to keep their lawyers busy.
The same goes for other large "get togethers" like G8, whereby politicians talk once or even twice a year to create and agree more legal text, which none of the governments are ever held accountable to anyway !
I obviously have no real understanding of how all of this works, but I also do not get any clear information on what the intention is, what the expected outcome is, who is going to deliver, and what benefits there are for the average Joe like me.
I guess it is because of this that the Pro Europe politicians are loathe to host referendums !
Confused.....
I too have searched the conclusions of the summit for the opt-out on the charter of fundamental rights. Paragraph 9 of the negotiating mandate says that the charter will become legally binding. But where is the British opt-out?
I have closely followed the expert analysis on the weekend's Council meeting and am confused as you, Mark. I cannot find reach a clear conclusion of what is so terrible about the mandate for the IGC. Transferring power to Brussels, when our own Government is increasing taxes, removing freedoms, fighting wars on flimsy legal pretexts, and genreally making our lives progressively miserable, does not sound all bad. It is clear that a referendum on Europe in the UK will always deliver a clear "no" - no matter what the question. Perhaps it is better to get it over and done with sooner rather than later.
Theree is a precedent to this situation. The Giscard "Convention" came out with a text which was submitted to the Council, which did some modifications of the text. As far as the full extent of the treaty, it will be up to to the ECJ to decide. In view of its past performance, I wouldn't put too much weight on opt-outs
If a citizen of a democracy were to understand only one piece of legislation really well, you would think that the Constitution would be a pretty good place to start.
For that reason if not for any other, it is a pretty basic principle that any document with constitutional ramifications should be comprehensible to as many of the citizens it affects as possible. Sadly, this treaty has taken the opposite course.
It seems to be a dogma among the Eurocrats that there must be a treaty and they are so desperate to have one that they are not even concerned about whether they understand it, let alone the rest of us. The irony is that none of the dire predictions about bureaucratic collapse have come to pass. Why can't we struggle on without this ridiculous document until someone thinks of a simple and incontrovertible reason why we need one? When we know why we need it it will surely be clearer what it should contain.
In the long game this is about taking the mile inch by inch.
If Britain should indeed be bound by this "treaty" she will suffer a death by a thousand cuts. Not one single "founding father" of the US constitution read in a right to abortion, or black and women's voting rights - and they certainly never intended for the federal government to dictate those terms except in very limited and explicitly stated circumstances to be amended only under very rigorous rules. The right to secession was left particularly unstated up until the civil war - prior to which people would commonly say that "The United States are a country" - it was only after the bloodiest conflict in American history, where the victorious people finally came out and said "The United States is a country". Many mis-statements actually attribute the root of that war to the abolition of slavery when it was really about about individual states' rights with the main trigger being governing the expansion of new entrants into the union (and yes one main issue being would they allow slavery's expansion or not?).
The whole objective of the Treaty and the agreement on it is to obfuscate the contents which is why a referendum is necessary as it will force the ex and new P.M.s to explain themselves.
This is not a joke it is serious and will define our futures for many years to come.
Why be surprised. The fact is that the eurosceptic camp will always negatively interpret EU agreements and the pro-euro camp will also have its usual bias. The problem is that the EU as a topic for discussion has become the most emotional and least scientific of them all, especially in the UK. Why did it take you so long to figure this out, or are you just writing to pass the time......
The real problem is the British just do not understand how it works in continental Europe. The first past the post winner takes all is unknown here. Every country has a form of proportional representation at all levels local, regional and national. This means that cross party agreements are quite normal. In his first tern Athnar party did not have an overall majority the PP being dependant on the support of the Catalan CiJ members. If he had not had an overall majority in his second term it would have be most unlikely he would have got agreement to join the attack on Iraq. In fact Zapaero leads a minority government in Spain the PP still having the most members of the Cortes.(Parliament).
This said, what has happened in Brussels makes perfect sense in anabling the E.C. to move forward at varying speeds with everybody on board. You might notice how the Spanish manage to get a very good deal with the minimum of fuss and bother.
Mark, as you are looking for certainties, here is one:
The Member States lack good will and a European spirit. They use the summit to play to their domestic audiences.
The obvious result of such attitude are texts full of footnotes and caveats.
Maybe it's time to go back to the original draft. It was a pretty good text until all kind of incompetent idiots got their hands on it.
for Jos (7):
see here:
The UK opt-out in justice matters is in Annex 1, para 19 (l).
The UK opt-out on fundamental rights is in footnote 17/2 in the same annex.
These texts are not made for human consumption. I am a bit shocked that people want everything super simple, but then request that all kinds of national traditions and cultures are reflected in exhaustive detail. You cannot have it both ways.
There is also a good deal of selective reading. Business now cries foul at the deletion of the reference to free and fair competition in the EU's objectives. But the same para still has "a highly competitive social market economy" as an objective in it. There seems to be no way pleasing people.
Citizens now claim, certainly egged on by journalists, that they should have a say in these highly technical matters, but then they don't even go to European Parliament elections.
Democracy as the rule for the people, by the people, through the people can only work if the people make a bit more of an effort than just mouthing off their negativity all the time.
We need an opt-out on all EU rules so we can opt out on everything until we are just a trading member.
Thank you Rog for your post: [...]"Why do you think the document is opaque?"[...]
It is all much clearer to me now. Eurosceptics are afraid because they think Britain is being taken over by the opaquis!
* 13.
* At 06:04 AM on 27 Jun 2007,
* beverly.johnson wrote:
"The whole objective of the Treaty and the agreement on it is to obfuscate the contents which is why a referendum is necessary as it will force the ex and new P.M.s to explain themselves."
Of course -politics is the art of confusing people in order to do what one wishes withing an apparent rigid framework of agreements. A referendum will not solve this at all -it will only add another layer of obfuscation.
I personally suspect that this is a big area of subconcious contention between Catholics (who have ambiguity and forgiveness built into the system) and Protestants (who desire clarity and are rather weak on "confession", "repentance" and "forgiveness"). One can only wonder how the enlargement of Europe to include traditionally Orthodox (and possibly Muslim) cultures will affect the political debate.
More cultural self-knowledge might be prefereable to even more clumsy attempts at a political solution.
I had easy time reading your blog. But it seems now it's over :(. Man, this post sucks. I hope at least the next one won't be.