Friday, 17 August 2007

Open Europe publishes first comparative text of the new constitutional treaty – it's exactly the same length as the constitution

Open Europe today publishes the first comparative text of the new constitutional treaty, and a new guide to what it means.

The official version of the treaty is almost unreadable as it takes the form of a series of amendments to the existing treaties, without reproducing the existing text which they will alter. In other words, the new version contains only the “active ingredients” ‘” the changes which were proposed by the original Constitution. This is intended to make it unreadable.

Open Europe is now publishing a consolidated text which shows how it would change the treaties. We also reproduce the text of the original version of the original Constitution alongside this. As you can see, the new treaty alters the existing treaties to bring them into line with the rejected European Constitution.

Some opponents of a referendum have argued that the “new” treaty is shorter than the old Constitution and so therefore cannot be substantively the same thing. This is a dishonest argument.

Once it is turned back into a consolidated text it becomes obvious that the “new” treaty essentially edits the existing treaties in such a way as to make them almost identical to the rejected Constitution. In fact the final product is the same length as the original version of the Constitution:

* The current treaties are approximately 54,000 words long

* The original EU Constitution was 63,000 words long

* The new version is also 63,000 words long.

The comparative text can be downloaded at:

The guide to the constitutional treaty can be downloaded at:

Several EU leaders have admitted that the new treaty has been made deliberately inaccessible:

  • The author of the Constitution Valery Giscard d’Estaing has said that: “All the earlier proposals will be in the new text, but will be hidden and disguised in some way.”
  • Former Italian Prime Minister Giuliano Amato has said: “They decided that the document should be unreadable. If it is unreadable, it is not constitutional, that was the sort of perception… Should you succeed in understanding it at first sight there might be some reason for a referendum, because it would mean that there is something new.”
  • Belgian Foreign Minister Karel de Gucht has said, “The aim of the Constitutional treaty was to be more readable; the aim of this treaty is to be unreadable’¦ The Constitution aimed to be clear, whereas this treaty had to be unclear. It is a success.”
  • The red lines are the same as before

    The new guide to the constitutional treaty looks at the Government’s claim that the new version of the Constitution is different because now the Government have insisted on a series of “red lines”.

    Because of the unexpectedly large number of European leaders who have been prepared to admit that the new version of the constitutional treaty is essentially the same as the old, the UK Government has stopped denying that it is the same document.

    The Government now argues that while it is indeed the same for other member states, it is different for the UK because of its various opt-outs and safeguards.

    But the various safeguards the Government are basing this argument on were also in the original version of the Constitution – on which the Government promised to hold a referendum.

    In 2004 Tony Blair made the same claims the Government is now making, before going on to promise a referendum:

    “It keeps unanimity for the most important decisions and, at our insistence, in particular for tax, social security, for foreign policy, for defence and for decisions on the financing of the Union affecting the British budget contribution. It keeps our ability to opt out of measures affecting our laws on asylum and immigration and extends that so that we cannot be obliged to cooperate on criminal law procedures where we do not want to do so’¦ The Charter expressly rules out establishing any new power or task for the European Union or any change in the powers of the European Union.” (21 June 2004)

    Nonetheless, he went on to promise in the same speech that:

    “In the end, the final say will be with the British people in a referendum.”

    So firstly, the Government wants to try to imply that the “red lines” are new, when they are not.

    Secondly, there are also good reasons to think that the various ‘safeguards’ the Government secured will not prevent the UK from being affected.

    The Charter: The guide explains why the Charter of Fundamental Rights will affect national law. As Swedish Prime Minister Fredrik Reinfeldt has pointed out “It was important for the [Swedish] government to keep the Charter legally binding, which now is the case’¦ the UK accepted this’¦ It should be stressed that the UK was given a clarification, not an opt-out.” (Swedish Parliament, 26 June 2007)

    When Tony Blair presented the agreement he had reached to Parliament he purported to “read out” the text of the protocol which is supposed to stop the Charter from affecting national law, but ‘” surely by mistake ‘” neglected to mention that only “Title IV” is said not to create new rights.

    Blair said: “Let me read out the terms’¦ ‘for the avoidance of doubt, nothing in the Charter creates justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law.’”

    In fact, the protocol actually states that: “for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law.”

    Home affairs: The guide also looks at the extensive and radical justice and home affairs provisions of the constitutional treaty. The Government implies that nothing can happen in this area without its consent. But the Government has signed up to give the Court of Justice jurisdiction in this area for the first time.

    The Government previously argued strongly against giving the Court this power. Back in 2000 the Government stated in a memorandum to the Lords EU ommittee that: “The Government does not accept that we should agree to extend full ECJ jurisdiction over the very sensitive areas covered by the Third Pillar. These raise sensitive issues relating to national sovereignty ‘” law and order and the criminal justice process.”

    In November 2006 Geoff Hoon told the Lords EU committee that: “There is clearly a risk that adding what is in effect an avenue of appeal at a very early stage in the process might be an opportunity of further complicating our existing asylum and immigration processes.”

    Foreign Policy: the guide argues that the Government’s argument that “unanimity remains the rule” in foreign policy is a distortion of the facts. In fact the constitutional treaty would end the veto in eleven different areas of Foreign Policy:

    1. On proposals from the new EU foreign minister
    2. The design of the EU diplomatic service
    3. Setting up an inner core in defence
    4. Terrorism and mutual defence
    5. Urgent financial aid
    6. Humanitarian aid
    7. The election of the foreign minister
    8. Civil protection
    9. Terrorist financing controls
    10. The new EU Foreign Policy Fund
    11. Consular issues

    Is it meaningful in practical terms to say that unanimity remains the “rule”, when there are so many exceptions?

    Social Security and tax. The new constitutional treaty, like the original, includes an “emergency brake” on one particular article relating to social security for migrant workers. However, the Court of Justice would be given new powers to ensu
    re the equality of social security entitlements of EU migrants (and third-country migrants) anyway ‘” so this “emergency brake” is effectively going to be directly circumvented by a judicial requirement.

    The “red line” on tax is particularly misleading. During the summit negotiations the Government ran implausible scare stories about having to “defend the veto on tax” ‘” which in reality was never under discussion. BBC Europe Editor Mark Mardell even reported on his blog that: “The government had the good grace to privately admit it was a bit of a con and ‘purely presentational’.”

    Our guide to the constitutional treaty can be downloaded at:

    Open Europe Director Neil O’Brien said:

    “Ministers have made no effort to make the new treaty accessible to the public. They refuse to make it available in a consolidated, readable form, and hope that the complexity will hide what is really going on, allowing them to wriggle out of their promise of a referendum.”

    “That would be a pretty pathetic outcome from a process which was launched in the hope of bringing Europe closer to the public and restoring trust.”

    “The Government has now started making the extraordinary claim that it has signed a “different treaty” than the other EU member states, so a referendum is not needed. But their red lines are the same as before.”

    “There are also good reasons to think that they will be circumvented, and of course these are the issues that the Government wants discussion to focus on, in order to distract from all the other things it has given way on”.