Saturday, 14 March 2015

Lisbon - Not The Amazing Self-Amending Treaty

Often in the local paper I have to lock horns with a group I refer to as the UKIP Letter Writing Society, whom I find long on rhetoric and short on facts.

And the latest is the dire warning that "they" can move the goalposts however they want, thanks to the Treaty of Lisbon being "self-amending".

Interesting phrase. But Treaties and Constitutions are "self-amending". Take, for example Article V of American Constitution:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate

The American Constitution is "self-amending". The rules for how it can be amended are contained in it, rather than in an external document.

Article 48 of the Treaty of Lisbon reiterates the traditional process for amendment (the "Ordinary revision procedure") and introduces a new process (the "Simplified revision procedure"), which is:

6. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union relating to the internal policies and action of the Union.

The European Council may adopt a decision amending all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.

The decision referred to in the second subparagraph shall not increase the competences conferred on the Union in the Treaties.

7. Where the Treaty on the Functioning of the European Union or Title V of this Treaty provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case. This subparagraph shall not apply to decisions with military implications or those in the area of defence.

Where the Treaty on the Functioning of the European Union provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure.

Any initiative taken by the European Council on the basis of the first or the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the first or the second subparagraph shall not be adopted. In the absence of opposition, the European Council may adopt the decision.

For the adoption of the decisions referred to in the first and second subparagraphs, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.

The important one here is Article 48 (6). The "Part Three of the Treaty on the Functioning of the European Union" is the section "Union Policies & Internal Actions", covering:

  1. The Internal Market
  2. The Free Movement of Goods
  3. Agriculture & Fisheries
  4. Free Movement of Persons, Services & Capital
  5. Area of Freedom, Security & Justice
  6. Transport
  7. Common Rules on Competition, Taxation & Approximation of Laws
  8. Economic & Monetary Policy
  9. Employment
  10. Social Policy
  11. The European Social Fund
  12. Education, Vocational Training, Youth & Sport
  13. Culture
  14. Public Health
  15. Consumer Protection
  16. Trans-European Network
  17. Industry
  18. Economic, Social & Territorial Cohesion
  19. Research & Technological Development & Space
  20. Environment
  21. Energy
  22. Tourism
  23. Civil Protection
  24. Administrative Co-operation

While a lengthy list, it does not cover everything. There are significant parts of the Treaty that cannot be amended by the process outlined in Article 48 (6). Also, this Article cannot be used to increase the European Union's powers.

There are also a couple of unanimity requirements:

  • There has to be unanimity in the European Council
  • A Treaty amendment cannot come into force unless it is ratified by every member state
Note the significance of the last. The American Constitution can be amended by the approval of three quarters of the State legislatures (as there are 50 US States, this means 38 States). The 38 smallest States comprise just over 40% of the American population, yet can force a constitutional amendment against the wishes of the 60%.

In the European Union, no nation can have a Treaty amendment imposed on it against its wishes.

Amendment is carried out via each nations' constitutional requirements. As far as the United Kingdom is concerned, this is the European Union Act 2011, with the relevant section covering amendments under this method, and a further section outlining when a referendum is needed.

Hence, a proposed amendment can be blocked by one of two or three ways:

  • The Prime Minister in the European Council
  • Parliament, by not passing the necessary legislation
  • The people, if a referendum in required

The member of the UKIP Letter Writing Society replied to say that the "they" he said could move the goalposts were the European Commission, who could do what they like without regard to anyone else. And then a diatribe about how the EU is a tyranny, the "EU project" has an aim to destroy democracy, yadda, yadda, yadda.

However, the European Commission has only two rights when it comes to Treaty amendments - the right to propose (where it is just one of several bodies that can), and the right to be consulted. The idea that it can unilaterally amend the Treaty does not reflect reality.

There is a case where the Treaty has been amended - and this was to set up the European Stability Mechanism, which didn't affect us, as we do not use the €.

In March 2011, the European Council met and decided that an amendment needed to be made:

The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality

This did not get ratified by an ex cathedra decision of the European Commission. The UK Parliament passed the European Union (Approval of Treaty Amendment Decision) Act 2012, which ratified the Council decision.

If Parliament had chosen not to, then it would not have been ratified, and hence the amendment would not be added to the Treaty.

While I enjoy debating with the UKIP Letter Writing Society, the frustrating thing is that they do not get their facts right, and when you do point out the facts you get the whole "the EU is undemocratic" (without any actual evidence provided) rant.

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