Beyond Brexit: UK Constitution upturned; Europe in a Human Rights Revolution

Review of Vernon Bogdanor: Beyond Brexit

Vernon Bogdanor excels in his analysis of the UK Constitution. He draws incisive conclusions about the major changes of the Constitution that have arisen from more than four decades of membership to the European Communities. He traces the change of model from UK’s unwritten constitution where Parliament ruled to the slow but sure movement where European “officials” in the Commission apparently pre-empt all.

As he wrote, and it is more apparent after he wrote, the Referendum, as an instrument of governance, has become the predominant factor in Britain’s Constitution.

The Referendum represents the most important challenge not only to UK because of Brexit, but because, by the disrespect of the referendum by Brussels as the primary instrument of democracy, Europe is entering a prolonged crisis which will overturn decades-long corrupt policy by politicians.

Early constitutions

Historically Britain did have a written constitution briefly under Oliver Cromwell. Before that, before the Anglo-Saxons arrived, and indeed the Romans, ancient Britons were governed by wise principles called the State Triads, the basis for our present Common Law. One of these defines the three governance principles:

• firstly, a referendum of all the people,
• secondly a parliament of 300, and
• thirdly a court where jurors or elders vote under its protection and privileges.

These ‘Laws of Wales’ were confirmed in the Magna Carta 1215.

The Referendum is now coming back to first place. It has changed how Britons think about their Constitution.

European Communities

Bogdanor does not dig so far back into history. But he is clear and detailed on the recent developments. He is right to draw attention to the fact that the original institution was the European Coal and Steel Community 1951 and not the “Common Market” 1957. His analysis of the supremacy of European law and the British lack of understanding of it is well worth a read.

The Continentals, however, have also failed to warn of the drift and resist the negative changes for all European citizens: the Democratic Deficit.

This is not something inherent in the Community system. In fact it was conceived as the most democratic system ever.

The two areas where his analysis is weak are the nature of European Democracy (as originally conceived and why it is ‘chloroformed’ under France’s autocratic president Charles de Gaulle) and the major change in the British constitution now that the Referendum is main instrument that outclasses even parliamentary decision-making. A more subtle and perhaps more important point is how to stop politicians cheating when a referendum is declared. This can be done when referendums do not have an adequate legal framework, for example, where the framework itself violates human rights.

Democracy is based on Human Rights

After the bloodiest of world wars and threatened by Soviet expansionism, the democrats who agreed on the Community idea, obviously wanted a democracy that would help west European democracies help themselves. They wanted to build together a better, freer world. The first step was the creation of a minimum standard for a country to be considered democratic. This was formulated in the Convention of Human Rights and Fundamental Freedoms of the guardian organisation, the Council of Europe.

This body and this entrance ticket may be considered the Bill of Rights and its guarantor for the future safety of Europeans and their States.

All subsequent treaties such as the European Communities had to be examined for human rights adherence and agreed by this body. And so they were. 

https://www.youtube.com/watch?v=3tcJKfuMYCk

Democratic blockage

What happened? Western Europe experienced an economic miracle for three decades that were unprecedented in its previous history. But in the 1980s it ran out of steam. Europe’s democratic engine is based on a ratchet system: it can go forward but not back. But for a while it can be blocked from advancing.

Europe gained its first Single Markets in 1953. De Gaulle stopped the advancement to what had initially been agreed: a transparent, open Council of Ministers and elections to European bodies. After de Gaulle’s departure in 1969 was when the reform to the high standards of Schuman democracy should have been made.

Alas, politicians, Continental and British, Irish and Scandinavian, preferred the neo-Gaullist system. European elections to the Parliament should be based on a single statute and one election, not 28 national elections that are easily manipulated. The closed-door Councils of Ministers remained. Politicians could thus abrogate to themselves excessive powers without public supervision.

The inevitable crisis

Today we are entering Crisisland: Brexit comes after barely surviving Greece’s Grexit and the continuing euro crisis.

Is the original democratic vision broken? Democracy needs the rule of law to sustain it. Law needs democratic glue to make it viable long-term.

Robert Schuman, the French Statesman who originated the Community method, created a new system to provide a partial (step-by-step) democracy in sectors to link and pacify ancient States and peoples, continually at war amongst themselves.

As Bogdanor says in his Gresham Lectures, Schuman initiated a ‘scientific experiment’ in democracy (speech at Strasbourg, May 1949). Schuman also said that democracy cannot be improvised. Progress is not automatic, nor, because of human nature, always in the right direction.

The Cause

This is where Bogdanor could have applied more of his analytical skills. After the war, the Community experiment was based on solid principles of good governance. The first document signed by the founding States in 1951 was buried by Gaullists in French archives. It was not republished again for fifty years. It is what Schuman called the Charter of the Community.

It is simpler than Magna Carta. It has one key right, the right of people to freely choose their destiny. True democracy contrasted with the Soviet system where the people could only vote for the Party and party dictatorship of the proletariat.

Democracy goes hand in hand with the first institution of modern Europe. That was not the EU or the Community but the Council of Europe, formed in Strasbourg in 1949. Its Rules of Membership – the Convention of Human Rights and Fundamental Freedoms – defined European values, Magna Carta rights on a broad European scale.

States and free populations that recognise these values of a free society are those that can call themselves European with freedom of thought, assembly, the press, presumed innocence in Court, and so on.

The Convention of Human Rights and Fundamental Freedoms now defines Europe more than geography.

Where did Europe and UK go wrong?

All the early treaties, 1951-57, were discussed at length in the Assembly of the Council of Europe to ensure they complied with human rights.

By the time UK joined NONE of the later ones were.

1950 European Coal and Steel Community, ECSC,

1953 European Defence Community, EDC

1953 European Political Community, EPC

1957 European Atomic Energy Community, Euratom,

1957 European Economic Community, EEC: Spaak Report.

The Community was considered a guardian of fundamental rights because it was within the Council of Europe system. For example, Article 3 of the EDC specifies the fundamental rights of the individual and rights of States.

1957-69 De Gaulle seizes power in France, stops elections.

1973 UK joined 3 Communities, ECSC, EEC (Common Market) and Euratom. But no elections to European Parliament and Consultative Committees took place.

1986 Mrs Thatcher agreed to reinforcing the Single Market in the Single European Act (SEA). But the politicians added more institutions. They were unpopular and few citizens agreed to them. This constitution-changing operation was mounted against British, Danish and Greek objections, only one referendum (in Ireland). Only nine of the 12 Member States signed the SEA initially in February 1986.

The politicians, meeting in the still closed-door Council of Ministers, created these new institutions for internal and external affairs and a hierarchical control by a European Council of heads of Government, after the pattern of de Gaulle’s system.

Constitutional change requires affirmation in referendums. In the UK, where some saw to where such constitutional change without popular authorisation could lead, a Referendum Party was formed with the aim of correcting government policy to the innovations without popular legitimacy.

The first cheat was to call the SEA a revision and not a treaty. The second cheat was not to have it analysed for Human Rights abuse by the Council of Europe. By this time the Council of Europe, side-lined by de Gaulle in 1957, was not allowed to interfere in the process or to pronounce on the diminishing human rights of these political operations. 

Human Rights by Force

The Community system had no institution called the European Council of Heads of State and Government. There was good reason. All European politics should be conducted in the Council of Europe and in Community bodies in open session.

The ‘Summit’ was an invention of Charles de Gaulle. He was the only Head of State allowed.

It provides fertile soil for an oligarchic control of European affairs without public supervision. In the Community system it was not even an institution, never mind a body with legal personality.

In the European Council, Heads of government could now meet in secret. Heads of government could decide what to do for their own advantage. They also had national majorities to pass them or force them through their parliaments. Later Treaties (Maastricht, Amsterdam, Nice, Constitutional and Lisbon) were forced through parliaments in rapid succession.

Once they leaders were agreed it was easy. All government parties with their parliamentary majorities did not have to take minority or popular voices into account. Some treaties were passed in spite of referendums blackballing them. Human rights? Forget it!

No Human Rights ‘interference’ was allowed from the Council of Europe. A substitute for proper Human Rights was penned, called the Charter of Fundamental Rights. Another fraud as it confused ideology with natural law rights.

It was forced through parliaments, in spite of its having been rejected in several referendums!!

Some Human Rights!

Impact of Human Rights

So what would happen if real Human Rights were restored and enforced in the Strasbourg Court? Sections of the present treaties would be resiled. What is the most significant section today?

The Lisbon Treaty was rejected by three States—France and the Netherlands when it was called the Constitutional treaty, and once by Ireland when it was called the Lisbon treaty.

Given a chance, UK voters would have rejected it with a large majority according to all observers. They were not given a chance. Politicians in UK and several other countries withdrew their already announced referendums.

The Lisbon Treaty does not pass the Council of Europe test. Nor does it pass the referendum test of popular support for a constitutional change.

What would happen if the Lisbon Treaty were no longer valid?

Well, for a start, there would be no Article 50. And no valid referendum of 23 June 2016. The people would have a choice of treaty. It is clear that across Europe, Lisbon treaty was unacceptable because referendums were banned. The only State, Ireland, that voted on it, voted against it. And then, under financial duress, Brussels politicians told the Irish to vote again!

A written Constitution for the UK?

Bogdanor concludes that UK is heading for a written Constitution. Scotland, Northern Ireland and Wales have such documents. These have been granted by the central Parliament in Westminster after referendums.

UK still has European Human Rights law that overrides even parliamentary Acts. So Westminster needs constitutional certainty.

Not so fast.

Much must be clarified first, primarily the voice of the people. This is the fundament of fundamentals. Neglected too long, the referendum is the most powerful, legitimising constitutional institution (with two others acting as helpers, parliament and the courts). Parliament is no longer seen as the main constitutional body that nothing can bind. The Supreme Court judgement in the Miller prorogation case shows that Government in Parliament is subject to judicial review and its decisions can be reversed and declared null and void.

(T)he Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect. 

Back to Constitutional Basics

Democracies are States or entities of the people ruled by the people for the people. Not closed-door oligarchies.

While no one doubts the legitimacy of the 1975 European Community referendum with its decisive result, the same cannot be said for David Cameron’s 23 June 2016 Article 50 referendum.

Why? The legal framework is missing. The May government said it was basing its exit letter on Article 50 of the Lisbon Treaty. The 1975 vote did not base itself on a treaty but the free vote of the people.

The legality of the Lisbon Treaty is quite dubious. It is a palpable fraud. Both Labour and Conservatives promised a referendum on the Lisbon Treaty. None came.

In reality referendums in France and the Netherlands had already rejected its articles. Later, six States, including the UK, were refused the possibility of a referendum. Why were they refused? Because the politicians knew and said at the time that these populations would reject the treaty!

Instead, in UK the treaty was passed off as agreed — without a referendum. But not only without one. It was passed off in direct opposition to the people. It was rejected in referendums in Ireland and in France and the Netherlands when it was called the Constitutional Treaty.

This sleight of hand must be rectified at first for future generations. A constitutional arrangement based on a fraud will not stand.

The people must agree to the Lisbon Treaty before it can be used. Only then can a problem free Article 50 be used as a basis for a referendum decision in Parliament.

The UK is in the midst of a constitutional revolution, comparable to the union of the United Kingdom. Now it is on the scale of the Continent of Europe (excluding only such States as Iceland, Norway and Switzerland etc who do not wish to join).

The Convention of Human Rights of Strasbourg supplies the baseline. The 1951 Great Charter of the Community defines the right of peoples to choose.

In the 21st Century the people in a referendum must agree every constitutional treaty.

An honest Europe cannot be built when politicians are allowed to fool the people in constitutional arrangements made in secret and without public assent.

David Heilbron Price

Eurdemocracy

25/XII/19

Finally! A BREXIT Solution without a THIRD Referendum!

Here is the only real Brexit solution. It requires no further referendum of the British people.

But…

It comes with a Warning!! It requires Honesty, plus Humility and Courage!

The British people have had two referendums on Europe. They don’t need a third referendum at the moment. They need politicians to listen to them. Politicians need to respect both the people and the law.

In 1975 the British people in a referendum giving mandatory instructions to the Government replied with a large majority to say that they wished to stay inside the European Community, comprising the Coal and Steel Community, the Economic Community and the non-proliferation Atomic Energy Community, Euratom.

In the meantime the European Community was changed from top to bottom. All without the people’s assent. Democratic principles were written clearly in the treaties. Schuman explained how Europe’s democracy principles should work. Open councils, elections, public control of budgets, all under the rule of law. They were subverted. Politician-pleasing protocols were added. Politicians introduced a corrupted Foreign Policy subservient to the oil cartel, Social Policy, a common currency and monetary union in violation to Community process and without full democratic assent.

They bolted the doors of the Council in defiance to the treaty articles that say it should be open to the public just like the Parliament. The secretive political cartel ignored instructions given in 1951 and subsequently that the parliament should be elected on a European scale and not as 28 separate, national elections.

On 23 June 2016 the British public replied massively in a second, long-promised but much delayed, referendum. It was an advisory plebiscite. The Government was required to take attentive note of the finely balanced result and act accordingly with circumspection and reflection.

The UK government, because of ruptures in the Conservative party, thought otherwise. A noisy, thoughtless and uninformed minority ruled the roost. “A political and economic disaster. Brussels lacks democracy. Let’s get out!” Some democrats! (The Community method helped Germany, France and other States become strong democracies and create a long-lasting peace.) They demanded an extreme solution, out of the Customs Union, out of the Free Trade Area. They included exit from Euratom. That had never been discussed in debates and documents. Neither had these British politicians analyzed how Schuman said European Democracy should work and what was needed to reform its neo-Gaullist errors.

Europe’s problem is not trade. It is Democracy!

Her Majesty’s Government was led by the nose. It postured like the autocratic Henry VIII. It had no need of clarification. It did not even need a parliamentary vote. That was arrogant overreach. It was humiliated in Court, twice.

The advisory nature of the referendum was confirmed in a landmark legal case brought by Gina Miller and others against the government. The judgement of the English High Court was confirmed by the Supreme Court of the UK. This exposed the hypocrisy of both the UK government and the Brussels cartel. In the UK, party politics trumped national interest. In Brussels, the party cartel exposed its neo-Gaullist hatred of “Anglo-Saxons”. That ditched European law. What a pitiful shame for the Commission which is supposed to be the Honest Broker for Europe! Guardian of the treaties indeed!

The people of Europe don’t need arrogant politicians who turn advisory referendums into mandatory ones. They require that representatives should show diligent attention to their needs, and wisdom in their proposed solutions.

Neither the UK Government nor the four presidents of the Brussels politburo system showed intelligence or integrity. First the presidents of the European Commission, Parliament, European Council and Council of Ministers showed their ignorance of both European and UK law. In this they were aided by Dr Martin Selmayr, Mr Juncker’s chef de Cabinet. He has now become Europe’s most powerful bureaucrat, the Commission Secretary General.

They acted with lightning speed after the referendum results were broadcast. They hardly waited for the ink to dry on the UK ballot papers. Early in the morning after the 23 June referendum, the EU ‘presidents’ issued a Joint Statement. Listen to its tone.

“We now expect the United Kingdom government to give effect to this decision of the British people as soon as possible, however painful that process may be. Any delay would unnecessarily prolong uncertainty. We have rules to deal with this in an orderly way. Article 50 of the Treaty on European Union sets out the procedure to be followed if a Member State decides to leave the European Union. We stand ready to launch negotiations swiftly with the United Kingdom regarding the terms and conditions of its withdrawal from the European Union.”

When someone says you must do something rapidly however painful it may be, you should expect there is some fraud going on. So it is here. It reveals both a sadistic tendency and above all an attempted cover up.

“Quickly, just put your hand against the door and I will stick my dagger into it. You don’t have to think! But be warned: it may be painful! I just wanted to rifle your pockets! Then we can have a beer together with my money.”

The legal basis of Article 50 is as slippery as a snake in the grass. It is a scam. Corruption is afoot, big time! Stop any talk of democracy!

Secondly there is the issue of the British Constitution and dare I say it– Common Sense.

Did Prime Minister Cameron reflect enough before he resigned at 10 am on 24 June, something he said he would not do? No.

Did he renegotiate with Brussels based on righting its core democratic deficiencies? An example would be stopping the Politburo enforcing the total exclusion of a Briton from ever becoming the Commission president. No.

Did Prime Minister Theresa May reflect enough before she wrote he Article 50 letter? No.

Did the Brussels Politburo ask the UK government for thorough legal clarification? No. It took the High Court and Supreme Court to do that.

Did they ask the British people to clarify exactly what was the reason for their discontent? No. They knew. The British and most sensible Europeans had for several decades complained about the “democratic deficit” — the non-observance of basic, open democracy in Brussels.

Did they ask the umpteen British lawyers inside the Brussels apparatus exactly how they they should configure this result with the British Constitution, Magna Carta and the Convention of Human Rights? No. That has yet to come.

So what should Europeans do? They should respect both the referendums and make the necessary reforms that all democrats would agree on.

Let’s get back to basics. Democracies are as Schuman affirmed in Lincoln’s definition “the rule of the people by the people for the people.” That rule can be direct by a referendum or representative via parliamentary members acting honestly for them. Democracies are also ruled by natural justice (not arbitrary justice as in Communist and Fascist systems).

A Community of 28 democracies must follow the same rules of democracy that it imposes on the nation. So, if one member wants to change the rules about Customs Union or Free Trade, then all the members must agree by the internal rules.

The stark truth is Brussels has failed to do that. The Democratic Deficit involves the jiggery-pokery and fraud about the new structures called “the European Union” from Maastricht up to and including the Lisbon treaties. A democratic Community must have assent of all. The Lisbon Treaty (then called the Constitutional treaty) was roundly rejected by referendums in France (where a referendum is defined as the highest instance of democracy) and in the Netherlands. Britain was promised referendums for all these treaties and it was refused by the unrepresentative representatives in parliament.

So the least we can say is that for the British — and every other democrat — a treaty imposed against the people is not legitimate. It violates elementary Human Rights. So does Article 50 which is part of it and the democratically rejected Constitutional Treaty.

What should be done? If democrats want more democracy they should act for it. They don’t leave the democratic battlefield.

They should demand that

• All deliberations in the Council of Ministers should be open to the press and public. That what all the treaties say.
• European Parliamentary elections should be conducted across the whole Community area under a single Statute defining voting requirements;
• The Consultative Committees (Economic and Social Committee and Committee of the Regions) should be fully active in legislation and be properly elected by European associations and groupings. Matters of industries, workers and consumers together with regional diversity are their responsibility in the treaties.
• The European Commission should cease being the monopolistic domain of partisan politics. It should be composed of a jury of totally independent personalities chosen by the public. It should again become the Honest Broker for Europe’s problems and for Europe’s future.

It makes no sense for the British to belly-ache about the “lack of democracy and freedom in the European Union.” They are members of the bodies. They should be leading the charge for Schuman’s democracy.

All it takes is Courage, Humility and Honesty!

Brexit Spivs in London and Brussels? Or Humpty-Dumpties?

Is HMG, Her Majesty's Government, acting like a Spiv or Humpty Dumpty?

If you don’t remember what a wartime and postwar Spiv is, the dictionary says it is a petty crook living dishonestly by his wits with a little bit of blackmail thrown in. Typically he opened his coat to show sought-after articles like nylon stockings for sale without ration coupons or watches of dubious origin.

Do we have Spivs running Whitehall and Brussels? You judge. One of the weakest parts of HMG’s position on Europe — if not the weakest — is Euratom. It retains a semblance of democracy which the EU has abandoned.

The much vaunted Article 50 deals only with exiting the Lisbon Treaty. It is a pretty poor treaty and many would say: “Good Riddance to it!” Legally it smells like rotten fish. The Lisbon Treaty is practically identical with the dead Constitutional Treaty that was rejected in their Referendums by the French and Dutch .
It would have been rejected by the British and a whole string of other democracies — if they had had the chance to vote. They didn’t. Instead the articles were forced undemocraticly through Parliaments against the wishes of their populations. Now that UK referendum that was refused so many times for Maastricht, Amsterdam, Nice, the Constitutional and the Lisbon treaties is coming back to haunt both HMG and Brussels.

The Lisbon Treaty has nothing to do with Euratom, the European Atomic Energy Community. It was agreed as a Treaty of Rome in 1957. It was supported by referendums and free votes in parliaments when all of the present Member States joined.
Lisbon only is rejected. On 23 June 2016 37 percent of the electorate voted to Leave the European Union. (63 percent refused to vote or voted Remain.) Prime Minister Theresa May wanted to leave immediately but it was as difficult to herd the Brexiteers in her government into a single policy direction on how to leave and what to negotiate. She wished to use royal prerogative powers, just like Henry VIII. "I decide, no debate or vote in Parliament!"
That failed when Gina Miller brought the matter to Court.

PM May has now been forced by the UK Supreme Court to introduce an Act of Parliament before the Government can issue the Article 50 letter that says the country would like to leave the EU. Presently, in the European Union (withdrawal) Bill before Parliament, the UK Government is trying some very dubious skulduggery. It is attempting to withdraw from both the European Union and Euratom.

The 23 June 2016 Referendum was on Remaining or Leaving the European Union.

The EU is a product of the Lisbon Treaty. The EU is quite separate from the Community.

As far as Brussels and lawyers at the European Court of Justice would look at it, there are two separate treaties with two separate clauses on exit.

The Lisbon Treaty has Article 50. Euratom has something quite different. It has a NON EXIT clause Article 208. Why? because it is about the democratic control of nuclear material and nuclear security. Its aim was to stop an atomic war in Europe. It says:

“The treaty is concluded for an unlimited period.”

The Government has tried to confuse this (but only in British eyes) in the UK’s EU (Amendment) Act of 2008. In it they say that when “they” say “EU” they mean “EU and Euratom” if there is a context that “permits and requires this”. Who judges the context– especially if none exists? Who judges the legality of a surreptitious sale of nylon stockings without a ration coupon? A Spiv or a Humpty Dumpty! The Act has a spiv-like features! Back in 2008, the Act was also the means to refuse the British people a referendum !

Here we can say there is no context given in publications or official Statement that allows HMG to say it is permitted or required to include Euratom with its No-Exit Article.

Are ministers living in Wonderland? This misdemeanor is more serious than Alice in Wonderland where words mean whatever you want them to!

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” Through the Looking Glass, chapter 6.

This tactic of HMG is fraudulent. The Humpty-Dumpties might want to add exit NATO, the Council of Europe or the UN !!

It is like saying when I bought your second hand car for two hundred pounds, I own your house too because when I say car, I mean ‘car and house’ !!

Besides this the real owner — the depository of the treaties — has no document saying that the 27 other Member States agree with this fraudulent, spiv-like practice! Hence the European Court of Justice could not agree with this.

The fairest and simplest amendment to any EU (Withdrawal) Bill would be to omit all mention of Euratom. No one campaigned for exiting Euratom!

In the Brexit campaign I know of no Government Statement or any publication where HMG has specified that the UK is leaving the Euratom treaty. Do you? If so then HMG has NO MANDATE to leave Euratom or alter its status.

Further backgound is available in the free eBook on academia.edu. It is at

https://www.academia.edu/30605744

In other words the present negotiations will be useless until Europe’s core problem is tackled — distrust of Brussels and also HMG’s refusals to hold timely referendums. The UK should work for democratic reform in Brussels. This should start with the treaty requirements that all Councils should be open to the public AS THE TREATIES SAY. The European Community was initiated by Robert Schuman to bring honest Government to Europe. The Commission, Europe’s Honest Broker, should be composed of honest men and women who refuse to be members of partisan organizations or interests.