Monday 8 February 2016
Booker recalls the Environmental Audit Committee debacle. I'm not named in his story, of course, because Booker is forbidden by the Telegraph management to name me in his column. The story, however, is picked up by Not a lot of people know that, who names the "expert witness" who could not be named.
It seems the whole thing was a last-minute stitch-up by Moonbat and Mary Creagh, to prevent me giving evidence which would have spoiled Moonbat's great day out. So weak was his evidence that he could not handle the competition. Thinking of Moonbat, therefore, I am reminded of John 11:39
Sunday 7 February 2016
In this instance, not of the Cummings variety, we get a seriously lightweight piece from Dominic Lawson
, former editor of the Sunday Telegraph
and now Sunday Times
Mr Lawson's subject for the day is the so-called "emergency brake", which he chooses to explore in terms of motoring analogies, starting with a little homily, to the effect that, "if the brake feels soft and spongy when pressed, it can be the indicator of imminent - and potentially catastrophic - failure".
Apart from the dreary lack or originality, however, the point to take home is that Lawson, in common with the entire corps of journalism – with the one exception of Booker - has not actually explained the nature and origin of what Mr Tusk calls the "safeguard mechanisms".
One can only imagine the transformative effect the detail might have, if prominently featured in the British media, pointing out that Mr Cameron was relying on a provision of the EEA Agreement, in force since 1994 and which could have been implemented at any time since.
What would also be interesting to see would be the effect this would have on the debate when it was pointed out that Norway, Iceland and Liechtenstein have the power to invoke this provision unilaterally (and that Liechtenstein already has), whereas the UK requires the permission of the European commission.
Not least, one might suppose, this would change the dynamic, somewhat, of the argument over loss of influence, as between the UK and Norway, when we leave the EU. Even a micro-state such as Liechtenstein has more "influence" than us, it would appear.
The crucial point here, though, is that this detail is readily accessible to the media, and it is not for want of trying that it has not appeared in the legacy media.
Following my abrupt and bad-mannered rejection on Wednesday by the House of Commons Environmental Audit Committee, I spent a cordial few hours in a floating hostelry with a member of the fourth estate, taking him through the Tusk "draft decision", including the detail of the "emergency break".
Specifically, I took him to the EEA Agreement and showed him Articles 112 and 113, pointing out the similarities in wording, and how it was that these were being used as the legal base for the Tusk decision.
Yet, despite some helpful follow-up messages, adding some useful detail, the response has been silence. As it stands, this brave hack has given more coverage to the foot attire of Nicholas Soames at PMQs than he has the origins of the "emergency break".
And that, in many respects, typifies the legacy media. Even when you go the extra mile to spoon feed then with the detail, handing them the story on a plate, nothing happens. Nothing, it seems, can interfere with the endless torrent of trivia which obsesses modern journalists.
Needless, to say, there are those who would have is continue down the path of helping and educating the legacy media, in the hope that they will one day get the message. Experience shows, though, that this is a fruitless exercise.
The media don't know because they don't want to know. Their ignorance is self-induced and meticulously cultivated. Dealing with them is wasted effort. Drivel from Dominic is as good as it gets.
Sunday 7 February 2016
Following on from the great Tusk proposal, Booker enters the fray
to declare that the "deal" is not binding in any way.
For the first time in the legacy media, we also see a reference to the so-called "emergency brake" stemming from articles 112 and 113 of the EEA Agreement, allowing the inference that Mr Cameron or his predecessors could have invoked this provision without going through the pretence of a "renegotiation".
If there was any way Parliament was doing its job, these issues would have been all over the newspapers this weekend, with a constitutional crisis in the making after the Prime Minister had been called out for lying to the House of Commons.
But, it would seem, a Prime Minister telling lies to the Commons is now part of the natural order of things. MPs don't care and it is not deemed worthy of any comment by the legacy media. Never more, therefore, has it been so clear that our democracy is broken.
None of us ever thought it would end this way, not with a bang but with a whimper. Leaving the EU – if it ever happens – can only be the start. If it isn't, there's little point in leaving.
Saturday 6 February 2016
One of the most dispiriting sights of the Wednesday last was the ranks of supine MPs crowding the Commons chamber, silent almost to a man (and woman) while their Prime Minister brazenly lied to them.
We drew attention to this in our earlier piece
, observing that his address to the Commons
(column 927) amounted to as clear a lie as has ever been uttered from the lips of a British Prime Minister. He told the House:
Finally, let me be absolutely clear about the legal status of these changes that are now on offer. People said we would never get something that was legally binding - but this plan, if agreed, will be exactly that. These changes will be binding in international law, and will be deposited at the UN. They cannot be changed without the unanimous agreement of every EU country - and that includes Britain. So when I said I wanted change that is legally binding and irreversible, that is what I have got. And, in key areas, treaty change is envisaged in these documents.
Not only is the idea that the document is legally binding a lie, built into that statement is the essence of a contradiction which proves it to be. Says the Prime Minster, "in key areas, treaty change is envisaged in these documents".
To his eternal shame, former Attorney General Dominic Grieve supported the lie, declaring that the Prime Minister had "achieved a quite remarkable result because of the legally binding nature of the document that he will bring back if it is accepted by the European Council".
The nearest anybody got to calling Mr Cameron out for the liar that he is was Bill Cash, who remarked that we had been "told and promised that this entire package would be both legally binding and irreversible, but now it will be stitched up by a political decision by the European Council, not by a guaranteed treaty change at the right time".
Cash is perfectly correct. The very fact that treaty change is necessary to cement in the provisions of this "settlement" means that they cannot be binding. And, since no one can guarantee the outcome of treaty negotiations still to be held, nothing dependent on them can be considered binding.
Earlier, we even had that noted EU-enthusiast Andrew Duff
making his own observations on Mr Cameron's core claim, which goes back many months. "If the heads of government want to placate Cameron", he wrote, "they can promise formally to change the treaty in the future, but such a promise will be neither legally-binding, nor irreversible".
Elaborating on his statement in the Commons, however, Mr Cameron is now insisting
that: "If it [the settlement] is agreed it will be agreed as a legally binding treaty deposited at the United Nations".
Crucially, though, this cannot be agreed as an EU treaty. As Duff points out, Article 48 of the Treaty of the European Union (TEU) would automatically kick in, requiring a convention and a full intergovernmental conference, in a process that would take about three years, assuming that the European Parliament would consent to holding convention.
Thus, Mr Cameron is relying on is the fiction that the European Council meeting on 18-19 February will, for the purpose of this settlement, constitute itself as an intergovernmental body comprising heads of government and prime ministers of the member states, with power to make a binding agreement.
This status is confirmed by the Tusk letter
, where the Council President states that: "Most of the substance of this proposal takes the form of a legally binding Decision of the Heads of State or Governments".
Notice, he does not state that this is a European Council decision. There is no such thing envisaged in the treaties in respect of this situation. He refers to "Heads of State or Governments". And like Mr Cameron, he wrongly states that it is "legally binding", although he does not say that it is irreversible.
At the very best, though, before this agreement (or "decision" as Mr Tusk would have it) could have any legal force as a "legally binding treaty", it would have to be ratified by all 28 Member States. This included the UK. The Government would need to gain parliamentary approval.
But if that is fraught, that is probably the least of the problems. There are, in fact, two insurmountable obstacles. Firstly, the settlement requires, in respect of several provisions, that the Member States agree to EU treaty amendments to give legal effect to those provisions.
The point here is that none of the signatories could guarantee the passage of treaty amendments and, even if they were to secure the amendments, none could guarantee their ratification.In this context, the Vienna Convention on the Law of Treaties (Article 61
) kicks in. As we noted previously, it states:
A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty.
The "object indispensable for the execution of the treaty" in this case is an amended treaty which, if it does not materialise, renders Mr Cameron's settlement unenforceable. As such, it is neither legally binding nor irreversible.
As to the second obstacle, the original settlement, agreement by heads of government, etc., acting as an intergovernmental body, are outside the framework of the EU treaties. But amendments to the EU treaty require actions by the European Council, legally an entirely separate body, and the European Parliament.
Here, the dictum res inter alios acta vel iudicata, aliis nec nocet nec prodocet
applies (two or more people cannot agree amongst each other to establish an obligation for a third party who was not involved in the agreement). This is translated into treaty law by Article 34 of the Vienna Convention, which states that "a treaty does not create either obligations or rights for a third State without its consent".
Put simply, no agreement can be binding if its execution depends on something outside the control of the parties making that agreement, rendering it impossible to deliver. And then no parties to a treaty can bind a another to its provisions, without their consent (which the EU is not in a position to give).
With that, as we averred in our previous piece and again here, the Prime Minister is guilty of the most grievous of all sins – misleading the House. By any other name, he is lying to the Commons.
Now, if the serried ranks of MPs can't or won't do their job, and call him out, then in a democracy this task falls to the media. And here, as always, the fourth estate is failing in its duty. The best it seems we can expect is the likes of the Guardian
conveying the views of Martin Schulz, president of the European parliament, who has said that the settlement was "reversible".
Reported in terms of a "he said – she said" argument between Schultz and Cameron, none of the media accounts dwell on who might be right. Sky News, for instance
, simply says Schultz is causing the Prime Minister a "headache" because "his comments threaten to play into Eurosceptic arguments".
Thus by gutless politicians and a gutless and witless media, the public are so ill-served that a Prime Minister can quite deliberately lie though his teeth and (so far) get away with it.
But then, who really cares? What really counts is that we should not be nasty to the media, or horrid to our revered MPs. Perhaps if we write a nice, polite letter to Mr Cameron, deferentially pointing out the error of his ways, he will immediately correct himself and apologise profusely for misleading us.
I look forward to this miracle with bated breath.
Friday 5 February 2016
I suppose that if you collected up all (or most of) the lazy "eurosceptic" tropes into one body of work, you would end up with something very similar to the speech
given by David Davis yesterday to the Institute of Chartered Engineers.
That made it almost inevitably that it should be picked by Michael Deacon for the Telegraph as the "sane voice of Euroscepticism", even if this lame hack does go on to ask: "but will anyone listen?" However, we will be fortunate if people don't listen, especially as the Mail seems to think that the speech is this MP's bid to lead what the newspaper calls the "out" campaign.
But the Mail's view is so typical of the legacy media, which is not only incapable of realising that we are running a "leave" campaign, but consistently failing to understand the difference between an election and a referendum.
You would think that even idle hacks could have by now have worked it out. An election is largely a matter (these days) of electing a government leader while the referendum is a clash of ideas. In the one, personalities are all-important, in the other they should factor not at all. Even Davis, the MP, had wit enough to recognise this obvious truth, saying of the eternal media quest for "Mr Leave": "Oh, I don't think it matters. The argument matters more than the person".
But this doesn't stop the odious Mail publishing a self-regarding comment piece entitled: "Who will speak for England?" It invokes the spirit of September 1939 when, in response to a dithering speech by Neville Chamberlain, deputy opposition leader Arthur Greenwood was enjoined to stand back from the appeasement posture and "speak for England".
The double irony here is that, in the run-up to 1939, the Mail's proprietor, Lord Rothermere had not only favoured appeasement but had actively supported Adolf Hitler, taking his paper with him in singing his praises. And it is this same newspaper which does not support withdrawal from the EU, arguing on 22 October 2011 that the then crisis (as opposed to this current crisis) offered "a perfect opportunity to renegotiate our terms of membership".
This is a newspaper which has become a by-word for amateurism and superficiality, yet writes an excoriating piece on how "rank amateurism, jealousies and petty hatreds are tearing apart the rival 'Out' camps" – another one unable to distinguish between "out" and "leave.
Yet the Mail
feels qualified to tells us that voters are "crying out for an informed and lively debate on the crucial issues". Instead, it laments, "they're being treated to a one-sided, stage-managed charade of scaremongering, spin... and censorship". For once, they must have been reading their own copy.
Furthermore, knowing how the legacy media has set its face against any mention of Flexcit
, there is not a single newspaper that can with any validity complain about censorship – at least, not without a very large measure of hypocrisy.
Also attempting to personalise what it also calls the "out" campaign is the Financial Times
which would have it that the "eurosceptics" are worrying about the "lack of leadership". The paper claims that there are "40 disparate groups with no single leader, clear campaign strategy or agreed vision".
No matter how many times some of us (including Arron Banks of Leave.eu) declare that we do not want a single leader, the media trots out the same meme – the FT
bring only the latest in a long line. But, as to a "clear campaign strategy" and an "agreed vision", the paper cannot exactly claim any great perspicacity of foresight when for nearly four years we've been openly calling
for a clear strategy.
Interestingly, it was in September 2012 that we were recording Cranmer's observation that the Eurosceptic movement was "fundamentally a clash of gargantuan egos, none of whom will deign to co-operate or collaborate with their co-eurosceptics, principally out of a lack of trust, belief or respect".
We were told
not to expect political coherence or campaigning strategy from the Conservatives, Ukip, the Democracy Movement, the Campaign for United Kingdom Conservatism, Better off Out, the Campaign for an Independent Britain, the Freedom Association, or the Liberty League. Said Cranmer, "you have more hope of persuading a Wahhabi Sunni to sup with an Ahmadiyyan and plant the cornerstone of a new mosque".
It was then, incidentally, that his Grace was saying: "until Euroscepticism speaks with one voice - or at least unifies around a single immediate objective - it cannot lead us to the Promised Land". And only a few days ago, we we saying
Leaving is the means to an end. It what we intend to do with our newly-acquired freedom that really matters and until we have a convincing answer to that, we will never leave.
But suddenly, as befits such occasions, everybody's an expert, with Allister Heath – Matthew Elliott's brother-in-law - peddling the Vote Leave line
under the guise of dispassionate comment.
A sensible, moderate anti-establishment campaign telling the public that it deserves a better deal, emphasising the costs of the EU and advocating greater control for the British public over the issues they care about, he says, could go down well. This is despite the numerous injunctions not to get bogged down in fractious disputes about money.
Keeping it in the family, in piles wunderkind
James Forsyth in the Spectator
, doubtless keeping in with commissioning editor Mary Wakefield, wife of Dominic Cummings. He takes time out to acquaint us with his brilliant insight as he tells us that eurosceptics are: "too divided and their campaigns too shambolic" to seize the opportunity afforded by the referendum.
Displaying the pig ignorance common to his trade, though, he moves on to tell us that "the arguments for Brexit are all there, waiting for someone persuasive to marshal them". With that, he neglects to inform us that his magazine, along with other journals, have been consistently and wilfully ignoring the most successful attempt to marshal the arguments.
Once again, it's the bloggers such as The Brexit Door
and Lost Leonardo
who are doing the heavy lifting. The so-called "professional" journalists simply fritter away their efforts on a tide of triviality and statements of the bleedin' obvious. Meanwhile, the Cummings-Elliott soap opera continues unabated
, with Cummings displaying the sort of behaviour
that confirms him as a liability to the cause.
It is from the other side, therefore, that we are seeing sense. The Centre for European Reform
has actually done something useful in stating that deregulation as part of a Brexit settlement is a non-starter – a point made yet again
by Pete North.
This brings us full circle, back to Davis, who tells us that, with Brexit, we "would have the opportunity to reform our economy, pushing through the changes necessary to create a dynamic, modern economy". Listing the benefits we can look forward to, he tells us that we will have such delights as "competitive tax rates, a competitive labour market, and effective, rather than burdensome, regulation".
After Brexit, says Davis, "we can put all that right without asking Brussel's (sic) permission". And what gets me here is the almost child-like naivety. This paints such a simplistic picture, creating the impression that the big bad world out there suddenly becomes so easy to manage, once we escape the shadow of Brussels.
Never mind all the complexities of managing the labour market, dealing with tax competition in the age of globalisation, multi-nationals and free movement of capital. And don't even trouble your pretty little head with the notion that regulation has to be negotiated on a global stage, which gives us some more flexibility, but not very much more.
So, given that we need a debate to sort all these issues out, from where is this debate going to come? The media is incompetent and the politicians equally so, while Vote Leave is bogged down with internal squabbling and the other "big leave" is necessarily focused on winning the designation. (Make no mistake, an organisation with Elliott and Cummings in it that became lead campaigner would be a disaster).
With Vote Leave poisoning the environment
, it seems that the last thing we are going to see any time soon is a rational debate about core principles, my so-called third battle. Would someone, therefore, like to tell me when this debate is supposed to happen?
Thursday 4 February 2016
After yesterday's wasted effort, on what actually amounts to an irrelevance, it's catch-up time, picking up on the torrent of news going on in what approximates to the real world.
The one thing one cannot accuse the legacy media of doing, though, is inhabiting that real world. Unable to comprehend the core difference between an election and a referendum, the likes of the Telegraph still want to characterise this is a battle between political "giants". They end up, however, picking a lumbering dinosaur in the form of Nigel Lawson, as the champion of the leavers.
That this, stale, irascible figure has come to the fore again says much for the state of British politics and – especially – the nature of what is laughably called "euroscepticism". After his more recent performance, and generally, that anyone can think Lawson is a suitable ambassador for "leave" is, frankly, risible.
What one hopes will only be a temporary prominence of this lumbering dinosaur arises from the failure of Vote Leave to clean out its own stables, and dispense with the unwelcome services of two of the most divisive figures in the "eurosceptic" camp – Matthew Elliott and Dominic Cummings.
The fact that these two have been sacked as board members of Vote Leave, but are being kept on as staff - with Lawson drafted in to afford "greater supervision" - is akin to recruiting some aging beast to impose order on a crèche full of puppies.
Such an arrangement, though, is indeed said to be temporary, lasting only until Mr Cameron has been to Brussels for the February Council. Then, we are told, a more permanent nanny will be brought in to control the squabbling children of Vote Leave.
Meanwhile, the debate is being drowned out by the thunder of dropped balls hitting the ground. While the media go for the shallow biff-bam of personality politics – the only genre they are fit to handle – analysis of substantive issues goes begging. Not a single journalist has so far showed any sign of understanding the detail of Mr Cameron's renegotiation package.
One of the more egregious claims is that the Tusk proposal is a "legally binding document", a claim repeated by the Prime Minister yesterday (column 927) in what amounted as clear a lie as has ever been uttered from the lips of a British Prime Minister. He told the House:
Finally, let me be absolutely clear about the legal status of these changes that are now on offer. People said we would never get something that was legally binding—but this plan, if agreed, will be exactly that. These changes will be binding in international law, and will be deposited at the UN. They cannot be changed without the unanimous agreement of every EU country—and that includes Britain. So when I said I wanted change that is legally binding and irreversible, that is what I have got. And, in key areas, treaty change is envisaged in these documents.
Not only is the idea that the document is legally binding a lie, built into that statement is the essence of a contradiction which proves it to be. Says the Prime Minster, "in key areas, treaty change is envisaged in these documents".
The very fact that treaty change is necessary to cement in the provisions of this "settlement" means that they cannot be binding. And, since no one can guarantee the outcome of treaty negotiations still to be held, nothing dependent on them can be considered binding.
What Mr Cameron seems to be relying on is the fiction that the heads of government and prime ministers of the member states constitute an intergovernmental forum which has to power to make binding agreements. The Tusk "settlement" is then supposed to constitute a treaty (which will then, of course have to be ratified).
But, as the Vienna Convention on the Law of Treaties attests (Article 61):
A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty.
In other words, no agreement can be binding if its execution depends on something outside the control of the parties making that agreement, rendering it impossible to deliver.
Furthermore, heads of government, etc., acting as an intergovernmental body, outside the framework of the treaties, cannot impose obligations on the European Union. As any good lawyer will tell you, the dictum res inter alios acta vel iudicata, aliis nec nocet nec prodocet applies (two or more people cannot agree amongst each other to establish an obligation for a third party who was not involved in the agreement).
The Prime Minister, in making his claims, is guilty of the most grievous sin of all – misleading the House. There is no half measure here. The claim that Tusk's "settlement" is legally binding simply isn't true.
Had we been blessed with a grown-up media, such issues would be addressed, but we are not dealing with adults. These are children let out of the crèche for a day, to play with things of which they know nothing - and with predictable results.
That leaves, as always, the grown-ups in the blogosphere to pick up the slack, which is our task over the next few days and weeks. It ain't going to come from the legacy media.
Thursday 4 February 2016
Having been asked several times by the Environmental Audit Committee in the House of Commons to give oral evidence to them on flooding, I travelled to London yesterday, at my own expense, prepared for the session.
Because of the Prime Minister's statement on the EU, the session was late starting but, before the first witness was heard, I was called out by a clerk. In a nearby corridor, he told me there had been "allegations" against me, relating to my online activities, as a result of which, the committee had decided that my evidence would not be called.
That my evidence would have completely contradicted the evidence of the first witness, George Monbiot, is neither here nor there – one assumes.
Who actually chaired the committee on this session
I do not know, mainly because I don't care enough to find out. Such is the incompetence of the the committee that, until late this morning, it was recording on its website the chairman as Labour's Huw Irranca-Davies, even though he stood down on 25 January. Suffice to note that this is obviously the way our masters do business now, and how they treat us lowly serfs.
I would mind so much had I not been specifically called by the committee to give evidence. I had not asked to give it, and had not contacted the committee in any way, until they had invited me. And, in anticipation of giving evidence, I had to spend most of the weekend preparing a written report for the MPs, to their deadline of Monday.
But, to add insult to injury, the clerk who yesterday conveyed the news that the Irranca-Davies surrogate didn't have the guts or courtesy to tell me to my face, told me that, "if I wished", I could submit written evidence to the committee. I have to say that my response was what one might describe as "robust".
I need, however, to place on record this cowardly behaviour by a committee of MPs
who obviously lack both manners and the courage to address me personally, and skulk behind their staff, getting them to do their dirty work. It is a measure of these loathsome creatures, however, that they don't even have the self-awareness to be ashamed of their own behaviour.
Wednesday 3 February 2016
And so it came to pass that Donald Tusk, President of the European Council, published in Brussels, his "proposal for a new settlement for the United Kingdom within the European Union".
Together with Tusk's letter setting out the outline of the settlement, the key document is the Draft Decision of the Heads of State or Government, meeting within the European Council, "concerning a New Settlement for the United Kingdom within the European Union".
If approved, it "shall take effect on the same date as the Government of the United Kingdom informs the Secretary-General of the Council that the United Kingdom has decided to remain a member of the European Union". But, what does it offer us?
In the first of the so-called "baskets" – Section A on "economic governance" - it will be recalled that Mr Cameron asked Mr Tusk on 15 November that, if the eurozone countries decided to take measures to secure the long-term future of their currency, they would nevertheless "respect the integrity of the Single Market, and the legitimate interests of non-Euro members".
In Mr Tusk's response of today, he acknowledges that, in order to fulfil the Treaties' objective to establish an economic and monetary union whose currency is the euro, "further deepening is needed". That is the euro-speak for a new treaty.
Restating the obvious, Tusk goes on to say that further deepening the economic and monetary union "will be voluntary for Member States whose currency is not the euro and will be open to their participation wherever feasible".
On the other hand, it is acknowledged that Member States not participating in the further deepening of the economic and monetary union "will not create obstacles to but facilitate such further deepening while this process will, conversely, respect the rights and competences of the non-participating Member States".
When it comes to the detail, we actually get six substantive points, which prohibit discrimination between euro and non-euro areas and a requirement that legal acts, including intergovernmental agreements between Member States, directly linked to the functioning of the euro area "shall respect the internal market or economic, social and territorial cohesion, and shall not constitute a barrier to or discrimination in trade between Member States".
In another of these provisions, the Council notes that the implementation of measures, "including the supervision or resolution of financial institutions and markets, and macro-prudential responsibilities", to be taken in view of preserving the financial stability of Member States whose currency is not the euro "is a matter for their own authorities, unless such Member States wish to join common mechanisms open to their participation".
However, while this is all good stuff, Mr Cameron called for "legally binding principles that safeguard the operation of the Union for all 28 Member States - and a safeguard mechanism to ensure these principles are respected and enforced". Instead of this, he has actually got:
[7. The substance of this Section will be incorporated into the Treaties at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States.]
The square brackets are in the text, which indicates text which has yet to be approved. So even in this draft document, we are dealing with a provisional statement. And that, itself, is very, very far from being unequivocal.
Crucially, this requires treaty revision and there is no treaty revision on the stocks. Thus the European Council is saying that at some unspecified time in the future, it will be included in a new treaty draft – assuming the then constituted Council agrees to be bound by the decision of its predecessor. It must then be agreed unanimously by all Member States - which the European Council has no means of enforcing – and it must then be ratified by all 28 Member States.
In other words, there are no "legally binding principles that safeguard the operation of the Union for all 28 Member States". Nor is there any legally enforceable "safeguard mechanism" to ensure these principles are respected and enforced. All Mr Cameron has is an unenforceable political statement from the current European Council, which hasn't even been approved yet. From the list of successes, therefore, scratch any idea of "economic safeguards".
Sovereignty - "ever closer union"
Missing out the virtually irrelevant Section B on "competitiveness", we skip to "Section C" which deals with sovereignty, the third of the so-called "baskets". Here, though, the European Commission is not addressing sovereignty, per se
, but the British Government's concern at the continued inclusion in the treaties of the term "ever closer union".
This was included in Mr Cameron's letter
to Donald Tusk on 10 November 2015, when he wrote:
First, I want to end Britain's obligation to work towards an "ever closer union" as set out in the Treaty. It is very important to make clear that this commitment will no longer apply to the United Kingdom. I want to do this in a formal, legally-binding and irreversible way.
From this, there can be no doubt that Mr Cameron is being unequivocal, especially in terms of wanting "a formal, legally-binding and irreversible" commitment from the European Union.
As to what is on offer from the Council Decision, after a something of a rambling preamble, we see this statement:
It is recognized that the United Kingdom, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union.
However, as it stands, that is a political declaration, which has no force in law. As per Article 15 of the Consolidated Treaties
, "the European Council … shall not exercise legislative functions". Thus, this statement falls very far short of Mr Cameron's requirement. That shortfall, though, is quite obviously recognised by the Council, as the next sentence, in a now familiar style says:
[The substance of this will be incorporated into the Treaties at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States.]
Once again, the square brackets indicates text which has yet to be approved. We are again dealing with a provisional statement.
This, then, is another issue which requires treaty revision, so the European Council is not able to give us a "legally-binding and irreversible" commitment from the European Union. In other of his "baskets", all Mr Cameron has is another unenforceable political statement, which hasn't even been approved yet.
From the list of successes, therefore, scratch "ever closer union".
That "red card"
Turning next to the much vaunted "red card", this refers to Mr Cameron's desire to enhance the role of national parliaments, "by proposing a new arrangement where groups of national parliaments, acting together, can stop unwanted legislative proposals". The precise threshold of national parliaments required, he wrote, "will be a matter for the negotiation".
Typically, the media in its usual ignorant way, has fallen for the trap of believing that something substantial has been offered by the EU. Taking this at face value, for instance, the Financial Times
argues that "allowing the parliaments of member states to reject EU legislation could be a significant boost for national sovereignty if a sufficient number of legislatures decide to play the 'red card'".
But the idea that national parliaments are to be given any powers at all to reject EU legislation at will is sheer moonshine. This is an elaborate and cruel deception.
What in fact is on offer is an extension of Protocol 2, already in the Consolidated Treaties, relating to subsidiarity, a provision that William Hague once dismissed
as so weak that even if the European Commission proposed the slaughter of the first-born it would be difficult to employ it.
Currently, as it stands, if a third of all the votes held by national parliaments are cast in favour of a complaint that a legislative proposals fails to conform to the principle of subsidiarity, then the draft must be reviewed. And after that review, the Commission may, if it so chooses, amend or withdraw the draft.
Now here's the thing. We are dealing with a very, very limited scenario. It is restricted to a situation where a draft law fails to comply with the principle of subsidiarity.
This applies only to areas where the EU does not have exclusive competence, whence the Union "shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level".
The number of occasions when this can be invoked is actually very small – twice since 2009 when the provision came into force.
But now, what is on offer is that:
Where reasoned opinions on the non-compliance of a draft Union legislative act with the principle of subsidiarity, sent within 12 weeks from the transmission of that draft, represent more than 55 % of the votes allocated to the national Parliaments, the Council Presidency will include the item on the agenda of the Council for a comprehensive discussion on these opinions and on the consequences to be drawn therefrom.
Following such discussion, and while respecting the procedural requirements of the Treaties, the representatives of the Member States acting in their capacity as members of the Council will discontinue the consideration of the draft legislative act in question unless the draft is amended to accommodate the concerns expressed in the reasoned opinions.
If this sounds slim, consider the Protocol as it already stands, which states that "if by a majority of 55 percent of the members of the Council or a majority of the votes cast in the European Parliament, the legislator is of the opinion that the proposal is not compatible with the principle of subsidiarity, the legislative proposal shall not be given further consideration".
What is on offer, therefore, is nine-tenths of nothing - a very slender enhancement of a provision that takes very little power from the Union. The bulk of legislation, which covers areas of exclusive competence, is entirely untouched by this provision, and then the only ground for rejection is a failure to conform with the principle of subsidiarity – which in itself is notoriously difficult to sustain.
Even then, while this is not specifically stated, to introduce this non-provision, amendments to Protocol 2 will be required, and since the protocol itself is an integral part of the treaty, that amounts to a commitment to treaty change – which is not yet forthcoming. The proposal is a charade.
Safeguard mechanism (migrant benefits)
Effectively, this is the biggest confidence trick of them all. The so-called "renegotiations" over the ability of the UK to suspend certain benefit payments to migrant workers are actually nothing of the sort. The UK, in a roundabout way, is simply invoking the pre-existing safeguard measures set out in Articles 112-3 of the EEA Agreement
While there has been much loose talk about Norway's supposed lack of influence in the EEA, it in common with any EFTA state, can take such measures unilaterally but, as Article 113 of the Agreement states: "For the Community, the safeguard measures shall be taken by the EC Commission".
Thus, all the UK can do is petition the European Commission, which will now consider a proposal to amend Regulation (EC) No 492/2011 on freedom of movement for workers within the Union, which will then set in train the administrative provisions for invoking Article 112.
As to the "influence" of the UK, all Mr Cameron has been able to achieve is a draft declaration
from the European Council, which states that:
The European Commission considers that the kind of information provided to it by the United Kingdom shows the type of exceptional situation that the proposed safeguard mechanism is intended to cover exists in the United Kingdom today. Accordingly, the United Kingdom would be justified in triggering the mechanism in the full expectation of obtaining approval.
So what this wonderful "new deal" amounts to is the agreement that the UK that can trigger an EEA treaty provision which has been in existence since 1992, "in the full expectation of obtaining approval" to control payments of British taxpayers' money to citizens of other EU Member States.
In other words, the UK is being told that it is justified is asking permission to control benefit payments to migrant workers and, all things being equal, might expect the Commission to give it permission to do so. That's real
influence for you.
However, as we see from the main "decision" this permission will have a limited duration and apply only to EU workers newly entering its labour market during a period of [X] years, extendible for two successive periods of [Y] years and [Z] years.
In other words, there the four years which Mr Cameron has pleaded for is not foreseen in this deal, it can only apply to new migrants, and will be time-limited, with the actual timings yet to be agreed.
And overall, Mr Cameron says
, this draft deal delivers "substantial reforms". It actually does no such thing.
Tuesday 2 February 2016
There is a telling difference between us lesser mortals and men such as John Redwood
. We believe that we need the 419 pages of Flexcit
, and something like three years of study, to define how we leave the EU. Redwood believes he can do it in a mere 417 words, contradicting the bulk of what we have to say in the process.
The detail of what Mr Redwood is writing is covered fully by Pete North, and explored further in another piece, and then by Lost Leonardo in his own blog.
Both writers take exception to Mr Redwood's many assertions, including the most egregious of them which have him declaring that "the Leave campaign does not want the UK to seek a Norway style deal", that in order to leave "the UK could simply amend the 1972 European Communities Act" and that, after leaving, we could "simply rely on World Trade Organisation membership to stop tariffs and other barriers being imposed".
Not without justice, Pete describes this as being "stupid to the point of malevolence", while Lost Leonardo writes of Mr Redwood having written a post that is "so anachronistic that one wonders if the man dreams not of taking Britain back to the 1950s but to the Cretaceous period, when dinosaurs ruled the Earth, without pesky big-brained mammals pointing and laughing at them blundering about the place".
Others have sought to challenge Mr Redwood directly, with Mike Stallard questioning his aversion to the Norway option, drawing attention to the fact that it is a "stop-gap". The response has been nothing if not perverse, with Redwood asserting that he has "no wish to end up in some EU-lite arrangement".
Such a facile response would tend to reinforce Pete's assessment that this is a malevolently stupid man writing. There can be little dispute that this is a particularly stupid response. No one with even the slightest familiarity with Flexcit could argue with any validity that it was "EU-lite".
However, of the many things we know about John Redwood, we would not mark him down as stupid. Everything points to him being a very clever man – a graduate of Magdalen College Oxford, a DPhil and a fellow of All Souls College.
The question therefore, is why such a clever man should behave is such a stupid fashion. And discussing this earlier with Christopher Booker, we concluded that the answer lay in the realms of animal psychology. Redwood is performing the age-old ritual of the cock proclaiming his dominance from the top of the farmyard dung-heap.
There is in fact a considerable body of scientific work, including the seminal 1993 work of Carlons Drews, on the concept and definition of dominance in animal behaviour. Drews defines the concept as:
… an attribute of the pattern of repeated, agonistic interactions between two individuals, characterized by a consistent outcome in favour of the same dyad member and a default yielding response of its opponent rather than escalation. The status of the consistent winner is dominant and that of the loser subordinate.
What Redwood is doing on his blog is displaying classic dominance behaviour, often known colloquially as "top dogging", although this is not a term you want to google without qualification, as it can lead you into rather different areas.
Often characterised as "aggression", there are recorded very different attributes to dominance behaviour, where the outcome is defined as much by the submissive behaviour of the subordinate as by the winner's actions.
What it boils down to is that alpha-male Redwood is marking his territory, prior to defending it, and thereby asserting his dominance.
In a pack animal such as a dog, this might be done by urinating on the bounds of his domain – the scent of which is distinct to that animal.
For the likes of Redwood, where such behaviour in the corridors of Portcullis House would be frowned upon and less effective, he relies instead on statements distinct to himself, then inviting agreement with them. This "agreement" he can then interpret as "submission", thereby reinforcing his self-perceived status as the pack leader.
We get exactly the same behaviour from Daniel Hannan, David Campbell Bannerman and even Ruth Lea – the latter establishing that the behavioural characteristic can present in the female. We're also getting it from Martin Durkin
, with his misconceived attempt to make a film on leaving the EU.
The essence of the dominance behaviour is that it must, by definition, be egregious – specific to the individual. If it reflects the consensus, or agreement with a competitive alpha-male, it cannot invoke the desired submissive response that the initiator is seeking. The response becomes conformity rather than submission.
Thus, as we see with Redwood, the assertions have to be different - unique to him. But they are different for the sake of being different – they have to be in order to enable him to identify submission and assert his dominance.
In this, however, there is a sad irony. While dominance behaviour is normal in lower order animals – seen even in guinea pigs – in humans it is often a sign of insecurity and weakness. It is exhibited most often by males on the fringes of the "pack", who lack real power. Those who have power assert their dominance by exercising that power. They have no need for artefacts.
In all senses one can see this weakness in the likes Redwood and the others, even in Nigel Farage – all are individuals who have never quite made it and harbour deep-rooted inferiority complexes.
The real sadness, though, is that these individuals, in their quest to demonstrate their own personal status to their peers, are dragging down the "leave" campaign. Insistent on projecting perverse ideas for no better reason than to reinforce their own status, they cause confusion in the ranks and provide material for the opposition.
Dealing with these people is less easy. In the animal kingdom, a more powerful alpha-male will challenge the pretender and force a submissive display, thereby restoring order to the pack.
Humans, on the other hand, who are able to carve out intellectual "territories", don't work this way. They are able to define their territories by the number who submit (i.e., support) them and exclude (block) those who refuse to yield. Unwittingly, this is why Twitter is so successful (and often so unpleasant), as it allows free-rein for alpha-male dominance behaviour.
For the "leave" campaign, this is disruptive and dangerous. We have become carved into disparate "packs", each vying for its own band of supporters, the ultimate objective of leaving the EU having been subsumed into the more immediate need.
Fortunately the answer does not require the pack leader to square off with the challenger, fangs bared. The key is that we are dealing with weak people on the margins. Therein lies the clue – they should be marginalised further, ignored where possible. And their status-seeking nostrums should be ridiculed.
With Redwood, that is extraordinary easy to do. The animal instinct has buried his intellect and all we are left with is stupidity. We can, with ease, let stupid dogs lie.
Monday 1 February 2016
The latest YouGov poll
on the referendum gives the leavers 42 percent and the remains 38 percent, with the "don't knows" at 18 percent.
And, as with all the other polls so far, the results are irrelevant. Whether we stay in or leave the EU is not what people are going to be voting on. The issue will be whether voters believe whether Mr Cameron has brought home the bacon from Brussels.
Last November, YouGov was telling us that, if the Prime Minister brought home a good deal, leavers would drop to 23 percent and remains would soar to 50 percent, with the don't knows at 24 percent. If, on the other hand, Mr Cameron failed to secure a deal, leavers took a winning majority of 46 and the remains dropped to 32 percent, with the don't knows at 19 percent.
The thing is, while the straight leave-remain polls have shown a considerable degree of volatility, the "deal" ratios have remained remarkably constant.
In July 2012, for instance, Andrea Leadsom was recalling a YouGov survey that showed 48 percent leavers and 31 percent remains. If a new deal was negotiated, 42 became remains and 34 percent leavers.
Currently, as of 28 January, if Mr Cameron brings home a good deal, leavers drop to 25 percent and remains soar to 49 percent, with the don't knows at 23 percent. If Mr Cameron drops the ball, leavers take 46 and the remains drop to 31 percent, with the don't knows again at 19 percent.
I don't know how often or how many times I have to write this, but this referendum boils down to a very simple scenario: Mr Cameron brings home a "good" deal, we lose. If he fails to come back with a deal, we win. All the rest is noise.
And, as we see Mr Tusk in London for another set of last-minute talks, and more of the "will-he, won't he" drama, I am sure I am far from alone in finding the whole thing crashingly boring. One yearns to tell the man: "get on with it!"
But everything we're hearing tells is that Mr Cameron is not going to bring back from Brussels anything bankable in February. And assuming he still wants to win, that is as good a reason as any why he will not be going for a June referendum.
I'm also told that the devolved MPs – and especially the Scots Nats, but also Scottish Labour, are dead set against a June referendum. With Corbyn scenting an easy victory, with the backing of rebel Tory MPs, we could see another purdah in the making, with the House of Commons throwing out the Regulations setting the referendum date.
Mr Cameron's Parliamentary spies are good enough to keep him appraised of the mood of the House, when it comes to such major issues, and he will already be aware that an attempt to mount an early referendum could lead to a humiliating defeat. On those grounds alone, he is unlikely to try it.
For all the fluff, therefore, that puts the more important issue back where it always was – settling the designation battle, and then getting behind a common vision and workable exit plan. The media and the pundits will be focusing on the fluff, as they always do, but these are the real issues to settle.
As to the designation battle, it looks as if attempts to oust Cummings have indeed failed – in a manner of speaking. But if he can't be forced out of Vote Leave, what may happen is that everybody else leaves Vote Leave, with Cummings ending up on his own.
That alone is something of a vindication of my stance. I gave Cummings a lot of my time, and freely offered him advice. When I last saw him in September last year, we parted on cordial terms, shaking hands as we parted. Weeks later, without the courtesy of any further contact, I found myself confined to outer darkness, for reasons which still have not been explained.
Now Anne McElvoy, for the Mail on Sunday, is writing of Cummings as a man who "could start a fight in an empty bar", witness his totally pointless re-opening of the Article 50 controversy.
This also vindicates Arron Banks's stance. There is no way anyone sensible can work with Cummings, and if he can't be ejected from office, then the only thing left is to isolate and contain him.
But, as we've been keen to point out, that alone doesn't resolve the situation. The leave campaign will then have to address its vision statement, and formulate its exit plan. The day cannot be put off for ever, and the debate cannot be skirted. So far, as a campaign, we've been coasting.
With Cummings goings, by whatever means, the real day of reckoning is coming. And there is very little room for compromise.