22 June 2004

EU Constitution Agreed

The Government agreed the EU Constitution at the weekend, marking the start of the campaign ahead of a possible referendum. We have summarised the key points / reports in the media over the weekend.

The Telegraph leader on Saturday accurately pointed out that Jack Straw was wrong when he claimed that national parliaments will be strengthened by the Constitution, that the emergency brake is not a veto, and that the President of the European Court of Justice made clear in an interview Friday that the Charter will have legal force.

The Times leader described the Constitution as having "suffered a confused genesis, a protracted negotiation and a bitter dénouement that has left it without authority, coherence or meaning."

The launch of Vote No - A number of newspapers reported Sunday on the launch of Vote No - a new campaign set up by many of the people that ran the No Campaign against the euro. A group of 28 senior business people backing Vote No have written to the Prime Minister outlining their concerns on the Constitution. The group included Anthony Bamford of JCB, David Ross of Carphone Warehouse, Sir David Lees of Tate and Lyle, Michael Spencer of ICAP and Simon Wolfson of Next. Their letter began:

"We believe that by agreeing to the EU Constitution, you have committed Britain to a structure that will harm our prosperity and weaken our democracy. The Constitution will hinder Europe’s capacity to adapt successfully to the modern world. Technological change, demographic shifts and globalised access to finance, accompanied by the spread of open markets, are leading to the emergence of new economic powers such as China and India. The EU is responding to these 21st century challenges with a Constitution that reflects a 1960s faith in centralisation..."

A poll for Vote No showed that most people oppose the Constitution and that most people do not believe the Prime Minister’s assurances that we will keep control over things like asylum and criminal justice. The Chief Executive of Vote No is Alex Hickman, a pivotal figure in the No Campaign, and the Campaign Director is Neil O’Brien, formerly the No Campaign’s Head of Research.

New Frontiers also had a poll reported in the Sunday Telegraph.

The launch of the Centre for a Social Europe - The front page of the Observer reported the launch of a new Left anti-Constitution think tank, Centre for a Social Europe. It conducted the first poll of Labour voters since the deal was agreed which showed that signing up to the Constitution made voters 62 - 17 less likely to vote Labour, and made Labour voters in 2001 les likely by 49 - 28; Tories in 2001 by an astonishing 86 - 3, and Lib Dems by 60 - 20. The Mail on Sunday had an article on the launch of another left-wing group - Labour Against A Superstate, which is to be run by Labour MPs and will focus on parliamentary activity.

Digby Jones: "the model that took the EU through the 1970s is failing" - The Economics Editor of the Sunday Times had a long article in yesterday’s paper on how Britain is doing better than the other major EU powers economically. According to the article, "Britain is better than Europe. Euroscepticism is the intelligent way ahead." The article quotes Digby Jones, Director General of the CBI, saying, "The model that took the EU through the 1950s, 1960s and 1970s is now failing the people of Europe" It is not British arrogance or Little Englander to say this. Britain has taken some very hard decisions over the past 25 years, both the Tories and Labour, and these policies have delivered the most successful economy in Europe. I don’t blame anybody who says, ‘We’re not going to give up on this’. So much of what I see coming out of Brussels wants to take us back to 1970."

Digby Jones was also quoted yesterday on the front page of The Business saying, "Pro-integrationist decisions by the European Court of Justice in the fields of tax and labour law are very worrying and remain a serious threat to competitiveness."

Myth and Reality - On Sunday morning, Blair told the Frost programme that the debate on the Constitution would be about "myth and reality".

The 10pm BBC TV news on Sunday was an example of how the BBC can distort the debate (though many other reports have been fair). Of all the polls covered by the day’s papers, the only one mentioned by John Piennar was the one concerning "ignorance", and Piennar then described one such myth (about passports) before dismissing it as the sort of thing the PM was talking about. The report wrongly gave the BBC’s support to Blair’s argument that the opponents of the Constitution are liars. The report also contrived to ignore the fact that some of Britain’s leading businesspeople had written to Blair that day launching a new campaign.

There have been many failures by the BBC but the Today programme continues to be the worst. It has a penchant for inviting Patten to go on in a prime slot before giving him extremely soft questions. In 1998, the BBC repeatedly put prominent business supporters of the euro on Today just before or just after 8am. Now that polls show strong business opposition to the Constitution, and support for bringing powers back from the EU, Today’s interest in business opinion has faded. It also continues to allow pro-Constitution spokesmen to say things that are factually untrue without challenging them, instead usually criticizing them from the perspective of "not trying hard enough to sell the EU" (though Humphrys’ last interview with Straw was a big improvement). The issue of BBC guidelines for this debate will be a central issue in the next few months.

Europe must think more about impact of regulation - The FT yesterday reported that David Arculus, chairman of the Better Regulation Taskforce, has called on the EU to look at the practical impact of new laws before launching EU-wide legislation. He pointed out that around 50 percent of UK regulation comes from Europe. The FT also reports that the Engineering Employers’ Federation is concerned about the level of regulation.

Howard attacks Blair for giving away powers - There is widespread coverage of the statement made by the Prime Minister on the Constitution in Parliament yesterday, and Michael Howard’s response. Michael Howard pointed out that 43 new areas of policy will be decided by majority voting under the Constitution, and that only 27 of the 275 Government amendments to the Constitution have been accepted. The Independent claims that Blair’s statement yesterday saw him "at his committed and campaigning best".

BiE letter in the FT - A few of Britain in Europe’s Council members have a letter in the FT backing the Constitution, claiming that the Charter of Fundamental Rights "does not - and cannot - unpick our tight domestic employment law. It is now clear that the charter cannot be used to override national laws and gives no new legislative powers to the EU...rejection of the Treaty would put British business and British jobs at risk. Logic surely dictates that we cannot afford to be estranged from the EU...we urge the government and others now to take the lead in campaigning for the vital Yes vote in the promised referendum."

It is hard to see how they can make this claim about the Charter given the actual wording of the Constitution and the comments from the President of the ECJ about its jurisdiction. See below for our view of these claims.

An ICM poll in April of 1,000 CEOs showed that by 59 percent to 18 percent they believed the new Constitution would be bad for their business and also, by 73 - 20, they believed that, "the EU is failing. Britain will be more prosperous and secure if we keep the pound and take back powers from the EU."

Britain in Europe - The Independent looks at how Britain in Europe will take the pro campaign forward, although it is still unclear whether BiE will be the main campaign. BiE spokespeople have only said so far that they will be "part" of a pro campaign.

Amicus may not support Government - The front page of the FT reports that Amicus, the country’s biggest trade union, may withhold support from the Prime Minister’s campaign on the Constitution because he has not done enough to secure workers’ rights.

Brown "gives support" to Blair - A number of papers report comments made by Gordon Brown yesterday giving his support to the pro-Constitution campaign. The FT speculates that the economic case for staying in Europe will be central to the Government’s campaign.

Dehaene stresses political side of deal - The Sun reports comments from Jean-Luc Dehaene, the vice-chairman of the body that put together the Constitution, that "This constitution marks the passage of the EU from a socio-economic Europe to a more political Europe, which will need to be further fleshed out in the years ahead." Also, following on from the Independent’s front page yesterday, which published so-called euromyths. Trevor Kavanagh has a list of myths from the other side.

The Italian Foreign Minister says that the Constitution is not the end but the beginning. "It is very important to see this Constitution as a starting point and not as a result." This little noticed comment will become a major part of the anti-Constitution campaign - the Constitution is not the "end" and there is no doubt that if it were agreed, then there would be almost immediate calls for a new version.

Gove article on the scale of the transfer of power - Michael Gove’s column in The Times looks at how the Government tried to claim victory over the weekend while actually giving away more powers to the EU. He points out that our ability to block measures we do not like will be reduced if we agree the Constitution and also that, despite Government claims, national parliaments will clearly be weakened by the Constitution.

The left campaign - The Times, Guardian report on the developing left campaign against the Constitution.

Commission looks at Stability Pact - The FT reports that the European Commission is set to discuss the Stability Pact this week. The Commission is said to want to avoid the conflicts that have been experienced in the past with those countries with large budget deficits. According to the paper, the Commission wants to "focus instead on using peer pressure to force through economic reforms." The report adds, "The proposals are an admission that the ‘nuclear’ threat of heavy fines on countries that breach the Stability Pact's deficit rules are no longer credible."

EU Presidency - The Telegraph reports that Germany and France have joined to insist that countries outside of the core areas of EU bodies and institutions should be banned from proposing candidates for the European Commission President and that the post be reserved for members of the "Old Europe" club.

Guardian Leader, Monday 21 June - The Constitution "draws lines and safeguards concerns voters everywhere in Europe are worried about...When press lies about Europe can play such a decisive role in forming our national political debates, it is difficult to see how we can ever have a fair and informed vote. In this context referendums merely become a way for unelected media owners to destabilise elected governments of which they disapprove."

Philip Stephens, FT 22 June - "What is required is the telling and retelling of some basic geopolitical truths...The national ‘sovereignty’ so beloved of Eurosceptics is an illusion. History shows that Britain cannot escape the consequences of decisions taken elsewhere in Europe. Globalisation makes a nonsense of retreating behind national borders. On the contrary, the pooling of sovereignty in the EU enhances Britain’s capacity to promote its own interests."

FT Leader, 22 June - "If Britain were the only country to vote against, the likelihood is that the other 24 countries would go ahead...Some would prefer complete withdrawal...Other opponents of the Treaty such as the Conservatives say a British veto would leave the status quo in place, yet allow others to forge ahead with closer co-operation of that was what they wanted. It is clear that many EU members would do that, and that the consequences would be much the same as withdrawal. Britain would become a second class member of the EU, with its businesses on the periphery of Europe."

PRIMACY

Monday’s Times leader, almost alone, raises perhaps the most important point about the debate: "If myths and realities are to be separated, ministers must now give straight answers to a large number of questions, first and foremost on the status of the constitution. Does it take precedence over Britain’s own unwritten constitution, as well as over our national laws? The Government asserts that it does not; senior lawyers insist that it does. If the lawyers are right, the European Court of Justice will become Britain’s de facto supreme court."

The Times is referring to the question of Article I-5 and primacy. Yet again yesterday, Blair got away with saying two false things, and we suspect he is not lying any more than the Independent and others have been lying. They have simply not read the Court of Appeal judgement that addresses this question.

(1) I-5 says that EU law shall have "primacy" over the law of member states.

(2) Attached is a Declaration that says: ""The conference notes that the provisions of Article I-5a reflect existing Court of Justice case law."

(3) The Government has said, "If agreed it would state the common intention and understanding of all the participating States that Article I-10 (1) [I-5a] has this meaning and should be interpreted accordingly."

(4) This is either a lie or a profound mistake: there is no "common understanding". The ECJ has said that all EU law has primacy over all national law including national constitutions. The Court of Appeal has explicitly considered and rejected this view.

(5) By agreeing this Constitution, we would be explicitly siding with the ECJ over the Court of Appeal on the most fundamental question possible - where does ultimate legal authority lie?

(6) This may convince judges that we have accepted a legal revolution - or, judges may reject such a transfer of power regardless of an explicit Act of Parliament giving effect to the EU Constitution.

(7) Surely the media ought to force this issue into the debate since Parliament has failed? It would be interesting to know what papers like the Guardian and Independent would say about this.

A full brief on this subject is available from NFF.

More power for national Parliaments? Thanks to Michael White’s question at the press conference in Brussels, Blair had to admit that his previous claims were untrue and that the Commission could simply reject any complaint from the UK Parliament.

"Red lines" spin finally exposed - Having fallen for the "red lines" strategy and the inevitable "tax row" with Chirac on Friday, much of the media then changed tune and reported that the Government had contrived the conflict to dodge the subject. The News of the World reported that Blair’s red lines "were a mix of real threats of a power grab by Europe and dangers hyped up so they could be triumphantly removed". A leader in Sunday’s Business stated, "The prime minister always intended to leave Brussels draped in the robes of Britannia; thanks to his tried and tested strategy of emphasising a few key areas on which he hoped to get his way and to ignore the dozens of areas where he would not, Mr Blair was able to fool the lazier parts of the media into believing that he was winning victory after victory...against the French and the Germans." A Telegraph leader on Saturday stated, "There was something distinctly phoney about the row. It was all part of an elaborate political game, in which the players moved rhetorical armies across Europe, emitting smoke to deceive each other and us. The most obvious ruse was that Mr Blair was fighting to see off tax harmonisation."

Where is the Constitution campaign? - The Tories want to talk about their new public services policies more than Europe. The Government wants to get across "success in schools and hospitals".

Vote No will use this time to develop networks and marketing plans to deploy before the election. There is massive task of conveying what is in the Constitution in a way the public will pay attention to. How will people react to the Constitution as it seeps into national debate? How will the simple physical appearance of over 600 pages (with all the Protocols) strike people? It seems to us that the fact of twenty million copies of a 600 page document hitting twenty million household doormats may have a very negative effect on opinion. It will be interesting to see whether the Government prefers to send a "summary", no doubt suitably edited, but there is no reason why Vote No could not send copies themselves at the appropriate time ("do you know enough to give away control?").

Legal argument over the Charter is crucial. Our view is that the Charter clearly is incorporated into the Constitution, it is explicitly intended to be an instrument used by the ECJ (why else would the government say that it wants the Court to look at the Explanations), and the President of the ECJ has said it will be part of their jurisdiction. It is likely this will become clearer over the coming months as various lawyers examine the question, and this is likely to prove very bad news for the pro-Constitution campaign.

The primacy issue (above) has not been an issue at all but it will gradually filter through.

The Yes campaign will struggle because their businessmen have admitted they need Blair to lead - the CBI can’t and won’t, since its members are anti and will become more so over time as the scope of current EU law irritates them more.

How do opponents of the Constitution articulate the case for an alternative plan for what a Tory government should do with the EU? It is necessary to articulate "EU transformation" as an alternative to "out now" and the Tories current position. Will the Right be able to strengthen intellectual and marketing networks sufficiently to form and sell such a vision? It has not so far.

If Blair does not campaign, there is no reason to think the polls will shift - but can he afford to campaign seriously before the election? Is it not more likely that he will make a couple of speeches but rather hope that he will be able to change the weather with a blitzkrieg after the election when the Tories are engaged in another post-mortem?

NFF poll. If there were a referendum tomorrow, would you vote for Britain to sign up to the EU Constitution or not?

Yes: 26 No: 60

Those who voted Conservative in 2001 would vote 79:15 ‘no’; Labour would vote 52:33 ‘no’; Lib Dems would vote 46:34 ‘no'.

2. Here are two alternatives. Which one do you agree with more?

The EU is a modern success story that should have more power. Britain will be more prosperous and secure if we join the euro, sign the Constitution, and support more European integration. A successful British economy requires European integration. If Britain is at the heart of Europe, we will have a powerful influence on how the EU works. The alternative is leaving the EU which would be an economic and political disaster.

The EU is failing. Britain will be more prosperous and secure if we keep the pound, say no to the Constitution, and insist on the EU giving back powers over trade, the economy and other things, to its member states. Britain should work for the transformation of the EU so there is more European cooperation and less European government - we should neither leave nor give it more power.

76 - 24 for (b). Those who voted Conservative in 2001 support (b) by an astonishing 92:8; Labour by 67:33; Lib Dems by 69:31

Conclusions (allied to focus group stuff we’ve been doing): "EU transformation" is the way forward for those who oppose "ever closer union".

People have experienced life outside the euro and over the last couple of years have seen Eurozone economic problems. This has changed public opinion in important ways. They no longer see Europe as a "modern success story" which we have to go along with to get richer. They reject the "influence" argument. In focus groups, they reject "inevitability" because "they said that about the euro but we’ve done better than them with the pound". This is the first time in five years that we’ve done focus groups and heard swingers say things like "Germany’s got real problems, we’re better off than them". They also reject the "in or out" argument - "they said that before but we didn’t get kicked out".

The first question shows the scale of Blair’s problem viz Constitution, but the second question shows what an extraordinary opportunity there is to articulate a different vision for Britain. Allied with our business poll in April (which showed 70% support for views very similar to (b) above), people are open to a message of "EU transformation".

This should connect (a) challenges of a new Century - new science, terror, Powers; (b) how the EU is not the answer to them; (c) how the EU should be transformed - ie. stripped back to a forum for cooperation, not government; (d) this would allow trade and other liberalisation that would make us richer, and allow us to create different global economic and security alliances; (e) combine this with a domestic message focused on education reform (obviously connects to 21st C challenges), and independence from politicians including things like new executive Government ("best people for the job") and mayors ("who can kick the police out of their cars"). The latter constitutional change works in political terms as well as policy - people are desperate for a Party to do something like this - and this sort of message obviously connects to the EU.

When the Constitution folds or is beaten in a referendum, we must think and talk seriously about what to do instead. New Frontiers is assembling a group of alpha people to do the necessary audit of the EU relationship and propose the way forward - mix of academics, business, military etc.

If we cannot articulate transformation, and if the Tories cannot build it into an overall message about the future, then the debate will continue to be as embarrassing as it is now, and the fringe will grow as people get angrier.

Final Text

There is not yet a single official text. You have to read:

a. The November 2003 Legal Experts Draft. b. Two documents issued by the Irish on Friday, called CIG 85/04 and CIG 81/04, which amend that Draft. They are available here