#G153* - The LISBON TREATY NOW + Qs & As

#G153* - The LISBON TREATY NOW + Qs & As

THE NEW CONSTITUTION LISBON TREATY as at NOW & many of The Questions, Answers, Fears & Idiocies!

with unequivocal thanks to Jim McConalogue on Conservative Home for having inspired the comments with his placement - comments that not only raise many Questions but also provide a number of Answers!

A new Conservative policy on the Lisbon Treaty?

The European Scrutiny Committee has effectively backed 88% of the British people who wanted a say on the Lisbon Treaty and who have questioned, on grounds of democracy and law, how the Lisbon Treaty could ever have been enforced in this country without their consent. How can Britain now sign up to the Treaty, via Westminster’s hastily passed Bill, if that Treaty is to incorporate the ‘Irish Decision’ (guarantees made to the Irish), and the parliamentary Act that has passed the Treaty is now nonsense.

The British Government are wrong to claim that the Irish Decision on the Lisbon Treaty is legally binding, so it is a good to see that a parliamentary committee – the European Scrutiny Committee – is asking for a response on how this is all possible. View this page and this one. There is therefore good reason for the Conservatives to adopt this as part of their policy – we are in a new stage and a new policy is required.

Since the Foreign Secretary has made various claims, relating to the points of the Irish Decision not being an instruction to the European Court of Justice yet at the same time a “legal guarantee” (?) and that the Decision will come into effect in UK law without even being incorporated into our own legislation (?), his arguments have been found to be hollow at every point. The letter from the Scrutiny Committee puts, quite succinctly, seven points showing that the Irish Decision is certainly not part and parcel of the Treaty and needs re-ratification. The legal status of the Decision is not justified – and Members of Parliament are obliged to demand re-ratification as a new Bill is essential.

The European Scrutiny Committee has clearly put the Foreign Secretary on the spot regarding the Lisbon Treaty and the Irish guarantees. Following the cross-examination of David Miliband at the European Scrutiny Committee on 2nd July (see these 2 questions), where the Foreign Secretary clearly could not answer the questions put to him by the Committee on the question of the legal and political nature of the Irish guarantees, the European Scrutiny Committee issued this letter.

David Miliband refused to bring a legal adviser to the Committee on 2nd July and now it will be for the Foreign Secretary and his legal advisers to try to answer these questions put to him in this letter. We are now in a position where we need to demand a re-ratification and a new Bill to follow this in relation to the Lisbon Treaty.

Posted by Jim McConalogue at 15:52 Permalink

Comments
SuperBlue said...
The pledge to leave the EPP - delivered.
A pledge to change the Lisbon policy - would be delivered if made.
Reply July 22, 2009 at 16:48

Robert Eve said...
As long as we leave the EU I don't care how we do it.
Reply July 22, 2009 at 18:55

Joshua. said in reply to Robert Eve...
Well you wont be wanting to vote Tory if you prefer to leave the EU. David Cameron has stated categorically that he wishes to be stay in the EU.
Reply July 22, 2009 at 21:52

Tristan Downing said in reply to Joshua....
Some EU resistance is better than none! The Tory position is better than Labour's and the LibDumbs'. I prefer the UKIP position on the EU, but I'm not stupid enough to actually vote for them! The only chance to get anywhere close to a better position for the UK with regards the EU is to vote for the Conservatives, because a failure to elect us could lead to a Labour win, or even a LibLab government. Then everything will have gone to hell! That is the twisted irony of UKIP's attempts to take Tory votes!
Reply July 22, 2009 at 23:15

woolfie said in reply to Tristan Downing...
It's the twisted irony of our corrupt voting system.

Why is it stupid to vote for a party whose agenda you agree with?

I realise you are anti-voting and I understand why and it's no way to run a democracy.
Reply July 23, 2009 at 00:10

Tristan Downing said in reply to woolfie...
I understand there are problems with the voting system, but this is the system we have. It isn't going to change before the next GE is it? There is nothing wrong with voting for a party whose agenda you support, unless it is not going to leave you with the desired outcome. I do not trust the EU at all, but if I were to vote for UKIP then I would almost certainly not get a UKIP MP, and I'd risk getting a Labour or LibDem MP. Given the current voting system, it is not pragmatic to vote for UKIP. Therefore on the current voting system, with regards to the EU question, my best possible outcome (ceteris paribus) is to elect a Tory government. It may not have my ideal EU policy, but it is by far the best of a bad bunch.

It is also the case that the EU is not my only concern and I support the Conservative position on a range of other issues. But it may be your view that whilst you are unlikely to be able to elect a UKIP MP, you wish to give them enough support to be able to stay in the game long enough to improve their electability, or until the voting system is changed. That might be a higher priority for you than the risk of a Labour or LibLab government.

Reply July 23, 2009 at 01:05

Ultimo Tiger said...
Now just so we're sure, Brown has actually ratified the treaty? We're past the point of no return?
Reply July 22, 2009 at 19:20

Denis Cooper said in reply to Ultimo Tiger...
The answer to the first question is "yes", but the answer to the second question is "no" - while we still have a sovereign Parliament capable of wholly or partly repealing its own European Union (Amendment) Act 2008, we're never past the point of no return.
Reply July 23, 2009 at 10:51

Tristan Downing said...
Can someone who actually knows about these things explain why if the UK and all other member state ratified the treaty before the GE, it would be impossible to undo it? People attack CCHQ for only promising a referendum on the Lisbon treaty if the Irish vote no. Is that attack justified?
Reply July 22, 2009 at 19:22

David Cooper said in reply to Tristan Downing...
Perhaps Martin Howe QC could be asked to write an article. His credentials on EU issues need no introduction.
Reply July 22, 2009 at 20:15

Ricardo's Ghost said in reply to Tristan Downing...
It wouldn't theoretically be impossible to undo Lisbon: in theory you could sit all the other member states down at the next Treaty round, and persuade them to undo everything in Lisbon. In theory it's possible but it's not terribly likely. It's also not something you can promise - you can't promise to make Sarkozy (for example) vote a certain way.

However, when people talk about this argument it's usually in the context of a post-ratification referendum - ie Lisbon has been ratified by everyone and is in force and then the UK has a referendum. The outcome of the referendum would have no legal bearing on whether Lisbon was in force. You could argue that it meant a minor constitutional crisis with the EU as regards things like energy policy which are covered by Lisbon but could conceivable have been opt-outs, but I doubt you'd get too far. However, the real problem is with things that could never be opt-outs: such as the EU President, the EU Foreign Minister, how to calculate how many MEPs a country is entitled to, how to calculate voting rights, how many Commissioners there are. There either is an EU President or there isn't, there either are 26 Commissioners or there aren't. Hence once it's in force you can't get rid of it without negotiating a new replacement Treaty with all the other member states. There's no default position to fall back to: if that principle did exist we'd be able to throw Poland out of the EU simply be de-ratifying the Nice Treaty.
Reply July 22, 2009 at 23:14

Tristan Downing said in reply to Ricardo's Ghost...
So basically we're screwed then? That’s the long and short of it?

I think when challenged with the attack that the Tory referendum promise is empty based on the fact that if ratified, there won’t be a referendum, rather than avoid the subject as has been the response so far, Conservative MPs should explain clearly to the public that in reality, stopping the treaty before it is ratified is the only chance we have of stopping it at all. I think they would understand (though not like it), but they won’t understand what might appear to be an empty promise. The British public will not stand for loss of sovereignty, but unfortunately they are too busy messing around to notice until it is too late.
I do not think a de facto EU super state will have legitimacy. Parliament may be sovereign here and so has the power to hand it over technically, but parliament is given legitimacy by consent, and I do not see the people giving consent to being ruled by an EU president. Especially if it turned out to be Tony Blair!

Reply July 22, 2009 at 23:30

woolfie said in reply to Tristan Downing...
There is absolutely nothing stopping us from holding a referendum on leaving the EU and as long as 51% or more vote out, hey presto we're out.

Actually there is nothing stopping a referendum on Lisbon either, we overturn laws and statutes all the time. It's just Dave trying to wriggle out of it, not my fault guv, we tried but the bloody Irish sold us down the river.


Voting Tory got us in this mess, voting Tory will not get us out
Reply July 23, 2009 at 00:15

Ricardo's Ghost said in reply to woolfie...
There's nothing hey-presto about it. Who says a referendum has to decided by a simple majority? The Scottish devolution referendum in the 1970s demanded a certain turnout level before it was valid.

There is plenty stopping a post-ratification referendum on Lisbon. If we (as expected) voted no, would there be an EU President the next morning or not?

As a related question, if the UK held a referendum on whether the Queen should take over as Secretary General of the UN (and 51% voted yes), would she become the Secretary General of the UN the next morning?
Reply July 23, 2009 at 01:18

Tristan Downing said in reply to woolfie...
I must admit, I haven't made up my mind on EU membership. I can see benefits to being a member, but I am highly sympathetic to the UKIP desire to leave the EU altogether. Other countries around the world manage to have various trade agreements with each other without being a member of something like the EU. I don't see why we couldn't. It would not be in the interest of the EU to ruin trade. I think the EU needs our money more than we need them for anything.

But for me alas, the jury is still out on the in/out queston.
Reply July 23, 2009 at 01:19

Ricardo's Ghost said in reply to Tristan Downing...
I don't think we're screwed necessarily. There's plenty of scope for playing hardball, and negotiating our way out of some of the things we really don't like. For example, at some point the Irish guarantees are actually going to need to be formally negotiated and put into the text. At some point Croatia will be joining. This is what the "we will not let matters rest there" line is all about.

However, it's utterly disingenuous for the hardline eurosceptics to peddle the idea that a post-ratification referendum would render Lisbon null and void: it would do no such thing. Calling them on this though can turn them quite irrational, which is probably why the leadership keeps quiet about it.
Reply July 23, 2009 at 01:23

Tristan Downing said in reply to Ricardo's Ghost...

A post ratification referendum would have no direct power. It wouldn't change the ratification of the treaty. It would be more for show. But if one was held and then not acted upon, that would be damaging for the government at the time. It might help to bring to the negotiating table with the EU though. It would prove that they need to make some big concessions if they don’t want an anti EU uprising. How much help it would be I don't know. Clearly it isn't going to happen though.

What in your opinion are the benefits to staying in the EU that it couldn't reasonably be argued we could gain in an alternative way?

Reply July 23, 2009 at 01:57

Denis Cooper said in reply to Tristan Downing...
Strictly speaking any referendum held within the UK is never more than a consultative referendum.

Even if the Act of Parliament authorising the referendum specified certain consequences which would ensue from one result or the other, Parliament could later decide to amend that Act.

And the people might well accept that it was legitimate for Parliament to set aside the result of a notionally binding referendum, if there was clearly a significant change of circumstances after the vote was taken which meant that it would be seriously against the national interest to still treat the referendum result as binding.

Parliament has the legal power to authorise a referendum on any issue whatsoever, at any time, and to treat the result in any way it decides, before or after the vote.

So, for example, Prime Minister Cameron could ask Parliament to authorise a retrospective referendum on the Lisbon Treaty with the question:

"Do you agree that the United Kingdom should cancel its approval of the Lisbon Treaty?"

and clearly establish the level of popular support for doing that, without necessarily committing the government or Parliament to immediately doing it.

A "no" majority would mean that he was justified in accepting ratification as a fait accompli, while a large "yes" majority would enormously strengthen his hand in negotiations.
Reply July 23, 2009 at 11:16

Tristan Downing said in reply to Denis Cooper...
In theory they could do that but they would have to be very careful about how the presented it to the public. They would not want to give the impression they will act directly on the outcome if they wont. It will cost a lot of votes to do that.
Reply July 23, 2009 at 11:27

Denis Cooper said in reply to Tristan Downing...
Agreed, but a specific promise of a consultative referendum is infinitely better than a vague promise "not to let matters rest there".
Reply July 23, 2009 at 11:58

Tristan Downing said in reply to Denis Cooper...
Possibly, but for which audience? A large section of society doesn't have the attention span to listen to why it would not be binding. You and I would understand it and would want one. And I agree about being vague. Being vague is the main media attack on DC at the moment. The leadership has said that if the treaty were ratified, they would seek to renegotiate key parts, but even that is vague. Some of the main things in the treaty are the EU president, foreign minister and all the policy crap that comes with both. How much can be changed with that? We couldn't negotiate it out of the treaty, we could only leave the whole thing.

How will this EU foreign policy thing work anyway? Does each member state have to agree to each action? Or just a majority? Is it even workable?

Reply July 23, 2009 at 14:29

Denis Cooper said in reply to Tristan Downing...
A referendum question in the form I suggested:

"Do you agree that the United Kingdom should cancel its approval of the Lisbon Treaty?"

is clear enough; it applies irrespective of whether the treaty has come into force or not, provided it isn't actually dead; either after the debate during the campaign a voter agrees that approval "should" be cancelled, or he doesn't agree; he is being formally consulted on his opinion through an official national referendum, a public consultation, rather than a small sample being consulted through a private opinion poll.

It would be for the government, by and with the advice and consent of Parliament, to outline what action would be taken if the majority agreed that UK approval of the treaty "should" be cancelled.
Reply July 23, 2009 at 16:45

Tristan Downing said in reply to Denis Cooper...
As long as the leadership is careful to make sure people know it is effectively an opinion poll then it should be okay. I'm not sure what the government would do with it though. How would you cancel the treaty without leaving the EU? Or is that your goal? In which case, wouldn't a simple in or out vote be more honest? If the UK did not consent to the treaty, all the aspects of it would still exist. The rest of the EU wouldn't drop the president just because of a post-ratification referendum in the UK.
Reply July 23, 2009 at 18:35

David Bean said...
It seems very clear that Miliband has been put into a tough spot, but I'm not clear why the government couldn't just agree to the need for a re-ratification and then push it through Parliament like they did the first time. They'd suffer another bruising in the press, but it's not as though their polling numbers could fall much lower, so if they're determined to have binding us ever-closer to Europe be part of their legacy, why not?
Reply July 22, 2009 at 20:35

Ricardo's Ghost said...
I believe the 'problem' is that the Irish guarantees are a set of memoranda of understanding - ie they don't change the actual text of the Lisbon Treaty itself. Instead the governments have committed themselves to honouring these guarantees at the earliest opportunity, most likely the Croatian Accession Treaty, and not doing anything contrary to them in the meantime. Therefore you can't re-ratify, because there's nothing to re-ratify yet.
Reply July 22, 2009 at 22:59

rcs said...
The German Constitutional Court's ruling has attracted remarkably little attention.

While they concluded that the Lisbon Treaty was constitutional, they also concluded that:

1) The EU acquiring extra competences without reference to the electorate was unconstitutional

2) The EU parliament was not a proper parliament and there was a democratic deficit

3) That the German supreme court could over-rule the ECJ when its decisions contravened German law.

Not being a laywer, this seems like a pretty serious impediment to the Treaty of Lisbon, particularly to the supremacy of EU law.

Barosso has said that he will respond to this in "due course".

We should take note of this ruling and consider how it can reflect in our position relative to the EU. I suppose that, as the act has been passed through Parliament, it is law but are all possibilities of a legal challenge exhausted?
Reply July 22, 2009 at 23:26

Denis Cooper said in reply to rcs...
3) directly contradicts the legal doctrine of primacy invented at the ECJ; the German court correctly maintains that the Basic Law is the supreme law in Germany, it will not permit the Basic Law to be violated by EU treaties and laws, and if necessary it will disapply any EU law which is incompatible with the Basic Law.

In fact it already did so, when it refused to allow the EU Arrest Warrant to apply in Germany:

http://www.bundesverfassungsgericht.de/en/press/bvg05-064en.html

"European Arrest Warrant Act void"

"According to the Court, the Act encroaches upon the freedom from extradition (Article 16.2 of the Basic Law (Grundgesetz – GG)) in a disproportionate manner ... "

The last I heard, that's still the case.
Reply July 23, 2009 at 11:31

Tristan Downing said...
The EU president without a mandate will more or less be an EU Emperor. Can you imagine an Emperor Blair? Dictating once again to us all.
Reply July 22, 2009 at 23:36

Tapestry said...
The mechanics and the stated reasons for this new wind of euroscepticism sweeping across the continent of Europe, are not too important.

Just notice that in country after country, the Czech Republic, Poland, Ireland, Germany and maybe the UK, acts of token resistance to EU power are breaking out.

The details are different in each country but the mood change is the same. The economic depression in process will end up smashing the EU and the Euro into tiny pieces.

Even the Conservatives are getting their act ready to take part in the fall of the Brussels Wall, and are positioning to take the credit for being the ones to have stood against the EU.

In reality they did no such thing, but hey ! That's politics!!!
Reply July 23, 2009 at 02:20

Roger Helmer MEP said...
It is suggested that the Irish guarantees may be incorporated into the Croatian Accession agreement -- the next EU Treaty which all member states will have to ratify. It may be that the Lisbon Treaty will be finalised before our General Election, but the Croatia Treaty will be afterwards -- when we will hopefully have a Cameron administration. A possible route for the Party would be to insist that it would not take part in a wholesale deception of the Irish voter, and that it gave notice that it would not ratify any future EU Treaty containing the Irish guarantees.
Reply July 23, 2009 at 07:06

Edward Huxley said...

Governments cannot bind their successors, so a future Conservative government could grant a referendum on the treaty, whether ratified or not and, of course could abrogate the treaty as well.

Unfortunately, as their prevarication has proved time and time again, the party`s leadership continues to avoid the issue and just makes noises about reforming the EU- something Brussels will never allow. In the end it will come to a straight in,acepting all the rules, or out.

For me, it`s out.I don`t want my country to become a small part of Euroland. The intentions are clear, we already have Regions, with their assemblies and most of southern England is now in the Arc Manche region, with its headquarters in Paris. Conservatives, to their shame, are serving on these bodies and collecting the allowances.
Reply July 23, 2009 at 07:14

EvanPrice said in reply to Edward Huxley...
Sorry Edward, I disagree. The problem with the law of treaties, especially in relation to treaties that amend existing arrangements, is that once they are in force, they cannot be unilaterally withdrawn from, abrogated or otherwise have their effect removed.

The idea that a referendum on post-ratification Lisbon Treaty could have any legal effect on the changes brought into force as a result of that treaty is, in my view, fanciful. It could be used to increase the pressure in negotiations, but I am not sure that it would either work or be wise to start from that point in any subsequent negotiations.

As to the Party's position, the reason that they don't want to be drawn on what happens if the treaty has been ratified is that they want to talk about what happens now, not what happens if something else happens - and as the treaty is not in force, discussing what they could do in the event that it is in force by the time they have any power to do anything about it is not necessarily going to increase their chances in any negotiations that they intend to have in that event.

History tells us that it is possible to negotiate with EU countries to retain powers that others want to merge - so I disagree with your assertion that it is a matter of accepting all the rules, or out, too.

BTW, I am opposed to the misuse of the preamble text of evercloser union to justify the intended political union and I was Counsel for Stuart Wheeler in the Court of Appeal.
Reply July 23, 2009 at 09:03

Edward Huxley said in reply to EvanPrice...
Well, we`ll have to see how things turn out. I remember Hitler had a treaty or pact with Stalin, but that didn`t stop the Germans invading Russia.

If you are right, then why don`t the Tories come out and say so, instead of continuing to prevaricate? "We won`t leave it there" has become a big joke,.
Reply July 23, 2009 at 09:51

EvanPrice said in reply to Edward Huxley...
I am increasingly learning that political messages are rather blunt and that to add subtelty to the message is to reduce their effectiveness.

For the party to explain what it intends to do in certain events is to reduce the argument about the current circumstances and in place argue about what to do in the future ... and that is not prevarication or dissembling, it is simply accepting that when dealing with complicated matters where a number of outcomes are possible you deal with the current situation and keep your messages simple, dealing with that situation, and change your messages when the situation changes and not before.
Reply July 23, 2009 at 11:28

Denis Cooper said in reply to EvanPrice...
But Parliament is not a party to the Lisbon Treaty, or any of the EU treaties, which are agreements between governments in the names of their states.

So the Preamble to the Treaty of Lisbon starts as follows:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:306:0001:0010:EN:PDF

"HIS MAJESTY THE KING OF THE BELGIANS,

THE PRESIDENT OF THE REPUBLIC OF BULGARIA ..."

and so on down to:

"... HER MAJESTY THE QUEEN OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND".

Who:

"HAVE RESOLVED to amend the Treaty on European Union, the Treaty establishing the European Community and the Treaty establishing the European Atomic Energy Community, and to this end have designated as their Plenipotentiaries"

The Plenipotentiaries designated by the Queen being:

"The Rt Hon. Gordon BROWN

Prime Minister

The Rt Hon. David MILIBAND

Secretary of State for Foreign and Commonwealth Affairs"

And then:

"WHO, having exchanged their full powers, found in good and due form, HAVE AGREED AS FOLLOWS"

So this is an agreement made by Ministers of the Crown, on behalf of the Crown, by virtue of Royal Prerogative.

However, long before it became necessary to declare it anew in the English Declaration of Rights, and enshrine it in Article I of the Bill of Rights 1688

"An Act declareing the Rights and Liberties of the Subject and Setleing the Succession of the Crowne"

which is still on the statute book:

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&Year=1688&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=1518621&ActiveTextDocId=1518621&filesize=2972

it was an established, fundamental, principle of our constitution:

"That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall."

Hence, an agreement made by two Ministers of the Crown, Brown and Miliband, on behalf of the Crown, cannot impinge on our domestic law without the consent of Parliament.

And even though Parliament has passed an Act, the European Union (Amendment) Act 2008, consenting to the domestic legal consequences of the Lisbon Treaty which had been made by the Crown, Parliament always retains the right to wholly or partly repeal any of its own Acts - and in this case it would mean that all or some of the Lisbon Treaty would cease to have any effect on our domestic law.

The governments of the other EEC countries were well aware that this was the constitutional position in the UK, and they agreed to the UK Treaty of Accession on that basis; indeed there was no other basis on which that treaty could have been agreed; and nothing in any subsequent EU treaty has changed that.
Reply July 23, 2009 at 12:50

EvanPrice said in reply to Denis Cooper...
The power to enter into treaties (if you like, contract between states) is, under our settlement, a prerogative power exercised by the Government on behalf of the Queen.

The principle of not having power to bind successors probably holds true, but certainly since the 1960's the courts have tried to give effect to international obligations when interpreting legislation. The result is that there would be in certain cases (and certainly where there is impact on international obligation) less reliance on implied repeal that our legal forefathers would accept as lawful.

The problem with the Bill of Rights argument is that it was tried to little effect in both the Maastricht and the Nice litigation. In the Nice litigation, the Judge hearing it conceded that there would come a time when so much power was handed over that it would effectively mean that the UK Government and Parliament ceased to have soveriegn power and that such a transfer would be illegitimate. In addition, the doctrine of implied repeal would mean that to the extent necessary, the Bill of Rights has been amended by Act of Parliament that subsequently conflicts with it - notwithstanding that I am unsure as to the extent to which this doctrine survives the 72 Act as amended.

We could repeal the 2008 Act, but it would not, in my view, affect the international legal obligations arising from the Treaty. Other lawyers would say that you cannot simply repeal the 2008 Act without repealing the 72 Act as well - and the other acts amending the 72 Act between then and now. The reason for this lies in the institutional effects of the treaties for the EU and the constitutional amendments (for the UK) that arise from the power, for example, of direct effect ... Now, while I can see the force of the argument, I don't think it is necessary to look at our settlement as having been amended in that way, as it is simpler to say that the primacy of Parliament remains, but that whilst Parliament could act to denude the EU of specific power unilaterally, the better way to act would be to negotiate that withdrawal of power in order to avoid conflict between the ECJ and the UK Courts. If we acted unilaterally and without negotiation, because of the other powers of the EU - including the power to fine and penalise member states - to act in this way would not be politically expedient, even if it were to be politically interesting!

Sadly, none of this is straightforward or, it has to be said, uncontentious. Get 2 constitutional lawyers in a room and they will come up with at least 3 and probably many more conflicting arguments as to why what I have written is both right and wrong. Perhaps people will now understand a little better why I think that answer 'we will not let matters rest' is sufficient at the moment.
Reply July 23, 2009 at 14:28

Denis Cooper said in reply to EvanPrice...
As far as I can see it cuts both ways.

Her Majesty's Government has deposited an instrument of ratification, through which it has expressed its final consent to be bound by the terms of the Lisbon Treaty, should that enter into legal force. However it was only in a position to express its consent to be bound on the international plane after Parliament had given its consent to a law giving effect to the treaty on the domestic plane.

Therefore, if Parliament repealed the European Union (Amendment) Act 2008 the Lisbon Treaty would cease to have any effect on domestic law even if it was in legal force, but Her Majesty's Government would still be bound by the terms of its treaty until it formally revoked its instrument of ratification.

Conversely, if Her Majesty's Government revoked its instrument of ratification but for some reason Parliament left that 2008 Act in place, then if the Lisbon Treaty had come into force then it would continue to affect domestic law. Under its own provisions commencement of the Act did not depend on the treaty coming into force, nor on the deposit of an instrument of ratification by the government, and nor would it automatically terminate if the instrument of ratification was revoked.

Clearly Parliament could repeal an Act it passed to amend its European Communities Act 1972 without having to repeal the original Act; Parliament can "make or unmake any law whatever", as the then Europe Minister Jim Murphy acknowledged last February:

http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080227/debtext/80227-0019.htm

and then quoting Lord Justice Laws - even though he then went on to mislead the House about the doctrine of primacy invented by lawyers at the EU's Court of Justice.
Reply July 23, 2009 at 18:04

Phil Kean said...
Irish guarantees?
---------------------------

It's my understanding that the Constitution hasn't been amended to accomodate the Irish concerns, and that the guarantees are in fact only verbal clarifications and assurances.

In other words, the Irish are voting on EXACTLY the same text that was originally rejected in the first referendum.
If there had been an amendment in any form, the Constitution [as ratified] would become invalid and would have to be re-ratified by the other states.

Insult doesn't come any more blatent!
.
Reply July 23, 2009 at 08:05

Ricardo's Ghost said in reply to Phil Kean...
That's the way these sorts of opt-outs always work (usually with Ireland or Denmark) - they're given a guarantee that certain amendments will be made for them at the earliest opportunity (usually the next accession treaty).
Reply July 23, 2009 at 12:23

Phil Kean said...
Tory policy
-----------------

It's becoming obvious to me that, once the Tories are in government, Britain's relationship with the EU will be dictated by events, and NOT by policy or treaties.

It is my view that Britain's self interest and economic survival will depend on our leaving the EU within 3 years of the new Parliament.

Of course, 12 years of Labour's undemocratic treachery has demonstrated that UK politicians DON'T necessarily do what best for Britain's future.
I hope the Tories reject that trend and start to put democracy & national interest before self indulgence & irresponsibility.
.
Reply July 23, 2009 at 08:26

resident leftie said...
The Tories will never, ever leave the EU, or abrogate the Lisbon treaty. The Irish protocols will be adhered to and added to the Treaty when it has been ratified. If leaving the EU is important to you, vote for an other party.
Reply July 23, 2009 at 09:59

Tristan Downing said in reply to resident leftie...
Don't listen to him. He's just trying to get you to waste your vote.
Reply July 23, 2009 at 11:05

resident leftie said in reply to Tristan Downing...
The Tories will never, ever leave the EU, or abrogate the Lisbon treaty. The Irish protocols will be adhered to and added to the Treaty when it has been ratified.

Which part of my prediction do you dispute? Or is it just the advice you disagree with?

Reply July 23, 2009 at 11:23

Tristan Downing said in reply to resident leftie...
Well, the "never, ever" bit is a little strong. "Highly likely never under Cameron" would be more fair. But mainly it was the advice!
Reply July 23, 2009 at 11:30

Phil Kean said in reply to resident leftie...
You'll notice my belief that the Tories will be FORCED by circumstances to withdraw Britain from the EU in order to rescue our economy and restore social cohesion.

There are LOTS of reasons why I see this coming - the very same reasons why Britain will probably [in real terms] be stuck in a spiral of economic decline and debt.
.
Reply July 23, 2009 at 13:05

Denis Cooper said in reply to resident leftie...
"The Irish protocols will be adhered to and added to the Treaty when it has been ratified."

1. There are no "Irish protocols". No such protocol exists, not even in draft form.

2. A protocol could exist; a new protocol to the Lisbon Treaty could have been negotiated and agreed by the EU governments, and ratified as a protocol by all the other EU member states according to their respective constitutional requirements, BEFORE the second referendum in Ireland.

There'd be no technical obstacle to doing that; in fact it's exactly what's being done with a new Protocol to the Geneva Convention:

http://services.parliament.uk/bills/2008-09/genevaconventionsandunitednationspersonnelprotocols.html

3. The reason that the EU leaders don't want to adopt that straightforward approach is that if there was an Irish protocol to the Lisbon Treaty to be ratified, then people in other member states would start saying that, actually, they'd like a protocol as well, because there are parts of the Lisbon Treaty which they never wanted but which were foisted on them.

4. So the Irish can't have a protocol before they vote again, but instead are expected to be satisfied with the promise of a protocol at some indeterminate point in the future.

And the people making this promise are? Well, to start with there's Gordon Brown, a proven, totally unscrupulous, liar ...

5. Even if there was an Irish protocol in the future, which is questionable, it would be attached to an accession treaty, not the EU founding treaties, and that in itself is a procedure which is open to question and challenge by the EU's Court of Justice.
Reply July 23, 2009 at 13:37

Edward Huxley said...
I agree with resident leftie. The Conservatives have no intention of leaving the EU, ever, so we might as well accept it and stop arguing.They have made this absolutely clear.

As I said before, they make vague noises about negotiating changes, but they know and we know that Brussels will not change anything and will keep on imposing new laws until we are forced to join the Euro and give up our country,lock, stock and barrel. So anybody whio thinks that if Mr. Cameron becomes Prime Minister it will all change is living in cloud cuckoo land.
Reply July 23, 2009 at 11:31

Nicholas Keen said...
Yesterday's story in the FT about Britain's relationship with Europe under a future Conservative government quoted a Brussels diplomat, who stated that the British position would be moderated by the desire of the US Administration to have Britain full engaged in the EU. American pressure is bound to be a factor, given the UK's reliance on US expertise for its nuclear deterrent, a history of military and intelligence cooperation, and the new President's inability to understand British reservations about the European project.

I hope that Mr Cameron's policy will not be unduly influenced by American pressure to pursue a course it deems appropriate for a trusted ally but which would prove indigestible to an American population under similar circumstances.
Reply July 23, 2009 at 12:07

Ricardo's Ghost said in reply to Nicholas Keen...
The diplomat is right. We will have to choose between euroscepticism and the Special Relationship. What ought to really trouble us is that the Americans are particularly keen on the Common Foreign & Security Policy (believing it will enable Europe to be a stronger ally able to co-ordinate itself), which of course we regard as the most objectionable part of Maastricht and Lisbon.

It will be interesting to see where Cameron goes with this: the eurosceptics and the atlanticists are particularly vocal and uncompromising parts of the party.
Reply July 23, 2009 at 12:37

Denis Cooper said in reply to Ricardo's Ghost...
It's also why the Tories should not rely in Vaclav Klaus being able to block the Lisbon Treaty coming into force for up to eight months if the Irish vote "yes" on October 2nd. He'll not only be under intense internal pressure to sign it off, and intense pressure from politicians in other EU countries, he'll also have Obama telling him to get on and sign it. One day it'll dawn on the Americans that they've been helping to breed a monster, but that hasn't happened yet.
Reply July 23, 200

The original version of this material can be seen if you CLICK HERE

"In politics, stupidity is not a handicap."
Napoleon Bonaparte (1769-1821),

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Greg L-W.

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‘The arrogance and hubris of corrupt politicians
will be responsible for every drop of blood spilt
in the Wars of Disassociation, if Britain does not
leave the EU.

The ugly, centralised, undemocratic supra national policies being imposed by the centralised and largely unelected decisionmakers of The EU for alien aims, ailien values and to suit alien needs stand every possibility of creating 200,000,000 deaths across EUrope as a result of the blind arrogance and hubris of the idiologues in the central dictatorship, and their economic illiteracy marching hand in glove with the idiocy of The CAP & The CFP - both policies which deliver bills, destroy lives and denude food stocks.

The EU, due to the political idiocy and corruption of its undemocratic leaders, is now a net importer of food, no longer able to feed itself and with a decreasing range of over priced goods of little use to the rest of the world to sell with which to counter the net financial drain of endless imports.

British Politicians with pens and treachery, in pursuit
of their own agenda and greed, have done more
damage to the liberty, freedoms, rights and democracy
of the British peoples than any army in over 1,000 years.

The disastrous effects of British politicians selling Britain
into the thrall of foreign rule by the EU for their own
personal rewards has damaged the well-being of Britain
more than the armies of Hitler
and the Franco - German - Italian axis of 1939 - 1945.

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Until we gain our liberty, restore our sovereignty, repatriate our democracy and reinstate our Justice system and our borders - defended by our Police and Military armed with sustainable and obtainable weaponry:
Treat every election as a referendum.

Don't waste your vote on a self serving Politician in ANY election until we are liberated from the EU and are a Free Sovereign peoples, with independent control of our own borders, making and managing Law & Justice for our own benefit, in our own elected Westminster Parliament where we can fire our politicians at the ballot box, if they fail to represent OUR best interests.
Make your vote count
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LEAVE THE EU