The Inexorable Rise of the EU?

antiskeptic

Hi..

I wouldn't be an avid follower of either politics or law ... but I have become a car driver of late. Which means I listen to the radio. And what I'm hearing reference to, in ever increasing fashion is ... Europe. More specifically.. European Law and it's influence on Irish life. And those references seem to take the specific form of ways in which we are constrained from acting in sovereign fashion, in this way or that "..because EU law says so"

Political/legal/social interest folk on the radio are mentioning this EU-element in passing. As a kind of by-the-by. There is this kind of auto-reference to some greater body than Irish sovereignty. A kind of shrugging of shoulder and a kicking to EU touch which appears to be accepted by the otherwise terrier-like radio interrogaters as easily as it is doled out by their interogatees.

What do legal-eagle folk here think? Is it the case that our sovereignty, in the area of law, is being silently but inexorably dissolved?

dermot_sheehan

Moved to Politics->European Union

Scofflaw

gabhain7 wrote: »

Moved to Politics->European Union

To be fair, I think the OP was asking for a specifically legal take on the question, rather than the probable political argument he's likely to get here.

On the other hand, the answer to "is there more European legislation affecting Ireland" is pretty open and shut - the answer is yes, there is. The question of whether that constitutes a "silent but inexorable dissolution of our sovereignty" is, on the other hand, essentially political.

cordially,
Scofflaw

evercloserunion

Good question from the OP.

It is absolutely true that European law is a very large part of the Irish legal system now. Some areas of the law are dealt with almost entirely at EU level. The EU has been the source of much of our equality legislation, employment protection legislation, consumer protection legislation and much more. I think its influence has been very positive.

As for whether or not it is a diminution of our sovereignty, I don't think that is true. The essential point is that there are limits and controls on what the EU can do, and any major expansion of these limits requires our consent. That is the definition of sovereignty. As well as that there is a democratic system of checks and balances within the EU itself.

mike65

The impact of European legistation can be enhanced or attenuated by the attitudes of governments, in Ireland the Powers That Be seem keen to play by the rules for the most part whereas others maybe are more "relaxed". Of course playing by the rules is handy for governments, they can say "its not our fault" when it suits.

sirromo

evercloserunion wrote:

As for whether or not it is a diminution of our sovereignty, I don't think that is true. The essential point is that there are limits and controls on what the EU can do, and any major expansion of these limits requires our consent. That is the definition of sovereignty.

That's an interesting definition of sovereignty. It implies that most European countries are not sovereign as they didn't get a chance to consent to the most recent EU treaty.

evercloserunion

sirromo wrote: »

That's an interesting definition of sovereignty. It implies that most European countries are not sovereign as they didn't get a chance to consent to the most recent EU treaty.

Yes they did, their parliaments ratified it.

sirromo

evercloserunion wrote:

Yes they did, their parliaments ratified it.

I assumed when you used the term "our consent" that you were talking about the people's consent. It sounds a bit disingenuous to use the term as though it was synonymous with "our parliament's consent". I don't think you'd take too kindly to a defender of the blasphemy law claiming that the law was enacted with "our consent".

The Bored One

sirromo wrote: »

I assumed when you used the term "our consent" that you were talking about the people's consent. It sounds a bit disingenuous to use the term as though it was synonymous with "our parliament's consent". I don't think you'd take too kindly to a defender of the blasphemy law claiming that the law was enacted with "our consent".

By electing them into power and into position where they can legally enact such a law we more or less did give them consent.

Scofflaw

The Bored One wrote: »

By electing them into power and into position where they can legally enact such a law we more or less did give them consent.

Indeed, that's very much the point of democracy.

sirromo wrote:

I assumed when you used the term "our consent" that you were talking about the people's consent. It sounds a bit disingenuous to use the term as though it was synonymous with "our parliament's consent". I don't think you'd take too kindly to a defender of the blasphemy law claiming that the law was enacted with "our consent".

Unfortunately, one has no option but to agree that it was enacted with our consent - no reasonable option, that is. In a democracy the minority consents to the enactment of law by, or on behalf of, the majority. In a representative democracy those elected on behalf of the majority have the consent of everyone to govern. Those who voted for the opposition are entitled to grumble that their representatives would do it better, and to seek to overturn it when in power, but their consent to laws made is implicit in their acceptance of the electoral system.

Otherwise, the system is not democracy, but factionalism.

cordially,
Scofflaw

BlitzKrieg

Also on a more general level *EU law* has become a sort of scape goat of late for Irish politics to duck responsiblity for issues because the vast majority of people assume that our own government has no say in the drafting of these laws (which is very far from the truth) so when they say *EU law* they are saying *NOT MY FAULT LALALALALALA!* when in pretty much every case it was.

Sort of the same as shop managers misuse of *health and safety regulations* to duck out of bad press reports in the news when they've refused service to someone or banned someone from the store.

Though on a curious note, currently living in london and the media is taking a few swings at the EU for not allowing londoners more access to olympic tickets for 2012. I havnt had a chance to research how much of this is accurate though

Amhran Nua

Scofflaw wrote: »

Indeed, that's very much the point of democracy.

Technically thats very much the point of a Republic, but how and ever.

ChocolateSauce

The EU hasn't got any powers that haven't been conferred upon it by the member states at some point in some manner, so it's more of a power-give than a power -grab.

BetterLisbon

Politicians use the EU to do things they could do through leinster house. If it goes wrong they can transfer the blame (e.g. Water charges in schools). If it goes right they have bought some votes (e.g. new motorway). I see it as no coincidence the deeper we have gone into the EU the stronger the grip of the established political parties.

BetterLisbon

ChocolateSauce wrote: »

The EU hasn't got any powers that haven't been conferred upon it by the member states at some point in some manner, so it's more of a power-give than a power -grab.

Half-True. Conferral is a one way street. Powers can only be deferred by unanimity too. So in reality once we confer a power its gone forever unless we withdraw from the union.

Scofflaw

BetterLisbon wrote: »

Half-True. Conferral is a one way street. Powers can only be deferred by unanimity too. So in reality once we confer a power its gone forever unless we withdraw from the union.

You mean that conferral isn't a one-way street, but one that can be reversed only either by unanimity or by a new treaty. You've actually said as much.

Politicians use the EU to do things they could do through leinster house. If it goes wrong they can transfer the blame (e.g. Water charges in schools). If it goes right they have bought some votes (e.g. new motorway). I see it as no coincidence the deeper we have gone into the EU the stronger the grip of the established political parties.

In fact, the grip of the established parties has weakened. Fianna Fáil haven't had a single party majority since 1987, having never required a coalition partner in the 14 governments before that. See here for a convenient history.

However, it's certainly true that Irish governments do hide behind the EU for unpopular measures - but that's something we allow them to do.

cordially,
Scofflaw

BetterLisbon

Scofflaw wrote: »

You mean that conferral isn't a one-way street, but one that can be reversed only either by unanimity or by a new treaty. You've actually said as much.



In fact, the grip of the established parties has weakened. Fianna Fáil haven't had a single party majority since 1987, having never required a coalition partner in the 14 governments before that. See here for a convenient history.

However, it's certainly true that Irish governments do hide behind the EU for unpopular measures - but that's something we allow them to do.

cordially,
Scofflaw

Er no scoff you missed my point. My point is that once we consent to the conferral of a power we cant take it back unless we can persuade all the other members which is a very very high threshold as all it takes is one "more europe" country like belgium or luxembourg to say no. So in reality conferred powers are as good as gone forever.

BetterLisbon

Scofflaw wrote: »

In fact, the grip of the established parties has weakened. Fianna Fáil haven't had a single party majority since 1987, having never required a coalition partner in the 14 governments before that. See here for a convenient history.

cordially,
Scofflaw

In case you hadnt noticed Lab,GP & PD's have been absorbed into the centre right concencus and FF&FG are now identical.

Scofflaw

BetterLisbon wrote: »

Er no scoff you missed my point. My point is that once we consent to the conferral of a power we cant take it back unless we can persuade all the other members which is a very very high threshold as all it takes is one "more europe" country like belgium or luxembourg to say no. So in reality conferred powers are as good as gone forever.

A competence can always be withdrawn by amendment of the Treaties - and that does not require unanimity, but only the necessary horse-trading. And to consent to conferral of a new competence requires a referendum in Ireland, as well as ratification by every EU country.

cordially,
Scofflaw

Scofflaw

BetterLisbon wrote: »

In case you hadnt noticed Lab,GP & PD's have been absorbed into the centre right concencus and FF&FG are now identical.

Ah, one of those sort of viewpoints. Since "centre-right consensus" has no real definition, there's no real point in arguing about it.

cordially,
Scofflaw

BetterLisbon

Scofflaw wrote: »

A competence can always be withdrawn by amendment of the Treaties - and that does not require unanimity, but only the necessary horse-trading. And to consent to conferral of a new competence requires a referendum in Ireland, as well as ratification by every EU country.

cordially,
Scofflaw

WHAT??? Treaty amendments require unanimity, thats so basic scoff.
Of course we would have to give something valuable up to get the power back, thats why its a virtually impossibly high threshold.
Conferral only requires a referendum if it is not foreseeable from existing treaties. Read the crotty ruling.

BetterLisbon

Scofflaw wrote: »

Ah, one of those sort of viewpoints. Since "centre-right consensus" has no real definition, there's no real point in arguing about it.

cordially,
Scofflaw

You are welcome to point out the major policy differences to me.

marco_polo

BetterLisbon wrote: »

Half-True. Conferral is a one way street. Powers can only be deferred by unanimity too. So in reality once we confer a power its gone forever unless we withdraw from the union.

True but such is life. I mean can you honestly think of a single example of a successful club where members are free to pick and choose what rules apply to them at will?

There are numerous possibilities for a withdrawl as well of course it is not simply all in or al out. An exit agreement as outlined under Lisbon could easily include EEA and/or Schengen type arrangements for example.

EDIT Oops didn't see the second page

Scofflaw

BetterLisbon wrote: »

WHAT??? Treaty amendments require unanimity, thats so basic scoff.

Not at all - treaty amendments certainly don't require unanimity. They're not subject to any form of rules, they're the result of behind the scene negotiations. They need to be ratified by everyone, certainly, but that's not the same thing - the process of getting them into the proposed Treaty in the first place is subject to no particular rules.

BetterLisbon wrote: »

Of course we would have to give something valuable up to get the power back, thats why its a virtually impossibly high threshold.

That would depend on how much support the idea of withdrawing that competence had. If you mean - as you appear to - an occasion where Ireland alone wished to withdraw a competence from the EU, and no other member state wanted to do so, then I'm sure we would have to offer some kind of value in return. It's rather hard to imagine such a situation arising in the real world, though.

BetterLisbon wrote: »

Conferral only requires a referendum if it is not foreseeable from existing treaties. Read the crotty ruling.

Sigh - no, Crotty does not have that meaning at all. The sole defined requirement for referendum that emerged from Crotty was the restraint on the free exercise of foreign policy included in the SEA by virtue of the requirement to consider the policies and interests of the other member states. However, Crotty didn't rule anything out as a reason for referendum, even including changes from unanimity to QMV, and any new competence granted by an EU Treaty can easily be argued as having been unforeseen in existing treaties simply by virtue of not having been included in them. For that reason the Irish government always calls a referendum, because it is safer to do so than to risk a legal challenge after Oireachtas ratification.

I do wish people would get that right.

cordially,
Scofflaw

Scofflaw

BetterLisbon wrote: »

You are welcome to point out the major policy differences to me.

Indeed, and also free not to bother, since that just moves the game to you deciding what policy differences are significant. We both know the answer to that in advance - you see no policy differences that signify anything other than the centre-right consensus.

amused,
Scofflaw

BetterLisbon

Scofflaw wrote: »

Not at all - treaty amendments certainly don't require unanimity. They're not subject to any form of rules, they're the result of behind the scene negotiations. They need to be ratified by everyone, certainly, but that's not the same thing - the process of getting them into the proposed Treaty in the first place is subject to no particular rules.



That would depend on how much support the idea of withdrawing that competence had. If you mean - as you appear to - an occasion where Ireland alone wished to withdraw a competence from the EU, and no other member state wanted to do so, then I'm sure we would have to offer some kind of value in return. It's rather hard to imagine such a situation arising in the real world, though.



Sigh - no, Crotty does not have that meaning at all. The sole defined requirement for referendum that emerged from Crotty was the restraint on the free exercise of foreign policy included in the SEA by virtue of the requirement to consider the policies and interests of the other member states. However, Crotty didn't rule anything out as a reason for referendum, even including changes from unanimity to QMV, and any new competence granted by an EU Treaty can easily be argued as having been unforeseen in existing treaties simply by virtue of not having been included in them. For that reason the Irish government always calls a referendum, because it is safer to do so than to risk a legal challenge after Oireachtas ratification.

I do wish people would get that right.

cordially,
Scofflaw

More half-truths. The EU treaties can only be amended by unanimity regardless of how you try to spin it. That is there must be 27 signed copies of the amendment in the vaults of the italian foreign minister for the treaties to change.
As for return of competences so you agree we would have to offer something to get the competence deferred. So my point of a very high threshold is accepted then. This is what eurosceptics have called the ratcheting process.
As for crotty read the judgement. Only if the transfer of competences changes the "essential scope or objectives" of the european club is a referendum required. That is they ruled that the european club was a dynamic organisation that could evolve from time to time but that foreign policy was a radical departure that could not have been envisaged from the 1972 referendum.

BetterLisbon

Scofflaw wrote: »

Indeed, and also free not to bother, since that just moves the game to you deciding what policy differences are significant. We both know the answer to that in advance - you see no policy differences that signify anything other than the centre-right consensus.

amused,
Scofflaw

Name 3 differences on economic policy that you deem significant. I wont argue with you i just want to hear what you have to say.

sirromo

Scofflaw wrote:

That would depend on how much support the idea of withdrawing that competence had. If you mean - as you appear to - an occasion where Ireland alone wished to withdraw a competence from the EU, and no other member state wanted to do so, then I'm sure we would have to offer some kind of value in return. It's rather hard to imagine such a situation arising in the real world, though.

What would happen if 26 countries wanted to withdraw a competence from the EU but one country wanted to retain it?

Scofflaw

BetterLisbon wrote: »

More half-truths. The EU treaties can only be amended by unanimity regardless of how you try to spin it. That is there must be 27 signed copies of the amendment in the vaults of the italian foreign minister for the treaties to change.

It's very ironic calling my statement a half-truth, when you're confusing (deliberately or accidentally) unanimity in Council votes with ratification by every country!

BetterLisbon wrote: »

As for return of competences so you agree we would have to offer something to get the competence deferred. So my point of a very high threshold is accepted then. This is what eurosceptics have called the ratcheting process.

In fact, if you read my post a little more carefully, you'll see that I consider that likely only in the entirely artificial scenario of Ireland being the only country wanting the repeal of a competence.

BetterLisbon wrote: »

As for crotty read the judgement. Only if the transfer of competences changes the "essential scope or objectives" of the european club is a referendum required. That is they ruled that the european club was a dynamic organisation that could evolve from time to time but that foreign policy was a radical departure that could not have been envisaged from the 1972 referendum.

Here are the three summaries of the judges allowing the appeal.

83. There is, of course, nothing in the Constitution to prevent the Government, or any person or group or institution, from advocating or campaigning for or otherwise working for a change in the Constitution. Likewise there does not appear to be any constitutional bar to a non-binding arrangement by the State to consult with other states in the conduct of its foreign policy. It is quite a different matter when, as here, it is proposed that the State be bound by an international treaty which requires the State to act in the sphere of foreign relations in a manner which would be inconsistent with constitutional requirements. What would be an imperative under international law would be proscribed under the Constitution. In such circumstances it is the Constitution that must prevail.

84. For the foregoing reasons I am of the opinion that, without the appropriate constitutional amendment, the ratification of the SEA (insofar as it contains Title III) would be impermissible under the Constitution. I would declare accordingly.

and

62. In enacting the Constitution the people conferred full freedom of action upon the Government to decide matters of foreign policy and to act as it thinks fit on any particular issue so far as policy is concerned and as, in the opinion of the Government, the occasion requires. In my view, this freedom does not carry with it the power to abdicate that freedom or to enter into binding agreements with other States to exercise that power in a particular way or to refrain from exercising it save by particular procedures, and so to bind the State in its freedom of action in its foreign policy. The freedom to formulate foreign policy is just as much a mark of sovereignty as the freedom to form economic policy and the freedom to legislate. The latter two have now been curtailed by the consent of the people to the amendment of the Constitution which is contained in Article 29, s. 4, sub-s. 3 of the Constitution. If it is now desired to qualify, curtail or inhibit the existing sovereign power to formulate and to pursue such foreign policies as from time to time to the Government may seem proper, it is not within the power of the Government itself to do so. The foreign policy organ of the State cannot, within the terms of the Constitution, agree to impose upon itself, the State or upon the people the contemplated restrictions upon freedom of action. To acquire the power to do so would, in my opinion, require a recourse to the people "whose right it is" in the words of Article 6 "...in final appeal, to decide all questions of national policy, according to the requirements of the common good." In the last analysis it is the people themselves who are the guardians of the Constitution. In my view, the assent of the people is a necessary prerequisite to the ratification of so much of the Single European Act as consists of title III thereof. On these grounds I would allow this appeal.

and

105. It appears to me that the essential point at issue is whether the State can by any act on the part of its various organs of government enter into binding agreements with other states, or groups of states, to subordinate, or to submit, the exercise of the powers bestowed by the Constitution to the advice or interests of other states, as distinct from electing from time to time to pursue its own particular policies in union or in concert with other states in their pursuit of their own similar or even identical policies.

106. The State's organs cannot contract to exercise in a particular procedure their policy-making roles or in any way to fetter powers bestowed unfettered by the Constitution. They are the guardians of these powers -not the disposers of them. For the reasons already stated I would allow the appeal.

Each of those refers specifically to the binding nature of the Title III agreement:

56. It commits the State, and therefore all future Governments and the Oireachtas, to the other Member States to do the following things:-

1. To endeavour to formulate and to implement a European foreign policy.
2. To undertake to inform or consult the other Member States on any foreign policy matters of general interest (not just of common interest) so as to ensure that the combined influence of the States is exercised as effectively as possible through co-ordination, the convergence of their positions and the implementation of joint action.
3. In adopting its position and in its national measures the State shall take full account of the position of the other Member States and shall give due consideration to the desirability of adopting and implementing common European positions.
4. The State will ensure that with its fellow Member States common principles and objectives are gradually developed and defined.
5. The State shall endeavour to avoid any action or position which impairs the effectiveness of the Community States as a cohesive force in international relations or within international organisations.
6. The State shall so far as possible refrain from impeding the formation of a consensus and the joint action which this could produce.
7. The State shall be ready to co-ordinate its position with the position of the other Member States more closely on the political and economic aspects of security.
8. The State shall maintain the technological and industrial conditions necessary for security of the Member States and it shall work to that end at national level and, where appropriate, within the framework of the competent institutions and bodies.
9. In international institutions and at international conferences which the State attends it shall endeavour to adopt a common position with the other Member States on subjects covered by Title III.
10. In international institutions and at international conferences in which not all of the Member States participate the State, if it is one of those participating, shall take full account of the positions agreed in European Political Cooperation.

That was the point at issue, and the basis on which the appeal was allowed. The judges did not rule out the possibility that they might consider a referendum necessary in cases where a Treaty introduced changes unforeseen by the existing nature of the EU, but they did not find anything in the material offered by Crotty that was unforeseen, nor was it considered relevant whether the foreign policy bindings could be considered "foreseeable" or not.

cordially,
Scofflaw

Scofflaw

sirromo wrote: »

What would happen if 26 countries wanted to withdraw a competence from the EU but one country wanted to retain it?

The single country would have to make that a sticking point at the treaty negotiations, because EU competences are granted and withdrawn only by way of changes to the treaties.

If they were the only country that wished to retain the competence, they would, as per the reverse situation, have to offer some valuable concession in order to have the other countries agree. In practice, a competence that was unpopular with a majority of coutries wouldn't be exercised in any case, because no legislation on it would be likely to gain a Council majority. After a while, it would simply become a dead letter, because the Commission generally prefers not to waste its time putting forward legislation that cannot pass.

cordially,
Scofflaw

BetterLisbon

Scofflaw wrote: »

It's very ironic calling my statement a half-truth, when you're confusing (deliberately or accidentally) unanimity in Council votes with ratification by every country!



In fact, if you read my post a little more carefully, you'll see that I consider that likely only in the entirely artificial scenario of Ireland being the only country wanting the repeal of a competence.



Here are the three summaries of the judges allowing the appeal.



and



and



Each of those refers specifically to the binding nature of the Title III agreement:



That was the point at issue, and the basis on which the appeal was allowed. The judges did not rule out the possibility that they might consider a referendum necessary in cases where a Treaty introduced changes unforeseen by the existing nature of the EU, but they did not find anything in the material offered by Crotty that was unforeseen, nor was it considered relevant whether the foreign policy bindings could be considered "foreseeable" or not.

cordially,
Scofflaw

Ok allow me to clarify. Deferral by unanimity i mean unanimity of member states by ratification of an amending treaty. Again all that is required is one "more europe" country like belgium to create the "ratchet".
You are avoiding the elements of the crotty judgement that rejected his appeal against conferral of further economic competences tn the community on the grounds that such conferral was to be expected from time to time in a dynamic organisation.

molloyjh

And another "interesting" debate on the EU filled with highly unlikely scenarios.

Okay BetterLisbon, what power can you see Ireland conferring to the EU (or power that we have already conferred) that Ireland, and Ireland alone, could want returned at some point in the future? I mean there is no point in having this conversation if no such scenario is likely to happen. So can you give us an example of where it could? If not the whole thing is moot really isn't it? I mean if my toes grew another couple of inches I'd need bigger shoes. It's not going to happen so I'm not going need bigger shoes.

Scofflaw

BetterLisbon wrote: »

Ok allow me to clarify. Deferral by unanimity i mean unanimity of member states by ratification of an amending treaty. Again all that is required is one "more europe" country like belgium to create the "ratchet".

No, that doesn't clarify anything, because unanimity is not a requirement in treaty negotiations. All that is required is consensus.

BetterLisbon wrote: »

You are avoiding the elements of the crotty judgement that rejected his appeal against conferral of further economic competences tn the community on the grounds that such conferral was to be expected from time to time in a dynamic organisation.

Er, no, because I've pointed out what the Crotty judgement was based on. However, I've also pointed out that the judges didn't rule out either new competences or QMV changes as possibly requiring a referendum, although they didn't find that in the specific case of the changes presented by Crotty - if you'd like me to quote that bit of the judgement, I can do so. Finally, I've pointed out that the Irish government now calls a referendum for EU treaties whatever their contents, because it is safer to do so than to ratify the treaty through the Oireachtas and then suffer the inevitable legal challenge afterwards. Nothing you have come out with has contradicted that viewpoint.

regards,
Scofflaw

BetterLisbon

Scofflaw wrote: »

No, that doesn't clarify anything, because unanimity is not a requirement in treaty negotiations. All that is required is consensus.



Er, no, because I've pointed out what the Crotty judgement was based on. However, I've also pointed out that the judges didn't rule out either new competences or QMV changes as possibly requiring a referendum, although they didn't find that in the specific case of the changes presented by Crotty - if you'd like me to quote that bit of the judgement, I can do so. Finally, I've pointed out that the Irish government now calls a referendum for EU treaties whatever their contents, because it is safer to do so than to ratify the treaty through the Oireachtas and then suffer the inevitable legal challenge afterwards. Nothing you have come out with has contradicted that viewpoint.

regards,
Scofflaw

But treaties come into force after ratification not negotiation, hence one "more europe" country keeps the ratchet pin in place.
Re crotty do you now accept that amending treaties do not require referendums when they changes they entail are not radical.

BetterLisbon

molloyjh wrote: »

And another "interesting" debate on the EU filled with highly unlikely scenarios.

Okay BetterLisbon, what power can you see Ireland conferring to the EU (or power that we have already conferred) that Ireland, and Ireland alone, could want returned at some point in the future? I mean there is no point in having this conversation if no such scenario is likely to happen. So can you give us an example of where it could? If not the whole thing is moot really isn't it? I mean if my toes grew another couple of inches I'd need bigger shoes. It's not going to happen so I'm not going need bigger shoes.

Ok, i will take a leaf out of jan o sullivans book - Healthcare. Lets say a Labour led government wants the EU to butt out of healthcare as jan o sullivan suggested. So Eamonn Gilmore goes to the european council and seeks the exclusion of healthcare from the single market but as Luxembourgian companies do a big trade in healthcare across europe they say no we want things to staty as they are. What do we do? Withdraw from the union?

molloyjh

BetterLisbon wrote: »

Ok, i will take a leaf out of jan o sullivans book - Healthcare. Lets say a Labour led government wants the EU to butt out of healthcare as jan o sullivan suggested. So Eamonn Gilmore goes to the european council and seeks the exclusion of healthcare from the single market but as Luxembourgian companies do a big trade in healthcare across europe they say no we want things to staty as they are. What do we do? Withdraw from the union?

Hang on, what specific power(s) are you talking about exactly? And do you really think that a Labour led Government will happen AND that they'll look to claw back "healthcare" from the EU (whatever that actually means)?

I'm not loking for hypotheticals here, I'm looking for a genuinely possible scenario and for a specific power, not just some random area. The EU dont have complete control over Irish healthcare so "healthcare" as a power means nothing.

Scofflaw

BetterLisbon wrote: »

But treaties come into force after ratification not negotiation, hence one "more europe" country keeps the ratchet pin in place.

You mean that if one country, having negotiated or accepted the repeal of a competence in good faith, then refuses to ratify the repeal of that competence, the treaty containing the repeal of the competence will not pass? That's both self-evident and irrelevant.

You've pretended the bar for removing competences is somehow higher than the bar for granting competences. It isn't, because competences can only be either granted or removed by treaty. You're claiming the bar for removing a competence by treaty is high, while ignoring the fact that it's exactly the same bar as for granting one.

BetterLisbon wrote: »

Re crotty do you now accept that amending treaties do not require referendums when they changes they entail are not radical.

I've never claimed they legally require it - that was your failure to read my post. What I've stated is that the Irish government holds one even if it's probably not legally required. Lisbon probably didn't require a referendum, for example.

Nor does this make any difference to your original erroneous claim, for the reason stated above - the methods for granting and removing competences are identical. Indeed, if it comes to it, a competence can be allowed to lapse in practical terms by never being exercised, whereas the EU cannot legally exercise a competence it has not been granted, so if anything, lapse of competence is easier than granting of competence.

regards,
Scofflaw

BetterLisbon

Scofflaw wrote: »

You mean that if one country, having negotiated or accepted the repeal of a competence in good faith, then refuses to ratify the repeal of that competence, the treaty containing the repeal of the competence will not pass? That's both self-evident and irrelevant.

You've pretended the bar for removing competences is somehow higher than the bar for granting competences. It isn't, because competences can only be either granted or removed by treaty. You're claiming the bar for removing a competence by treaty is high, while ignoring the fact that it's exactly the same bar as for granting one.



I've never claimed they legally require it - that was your failure to read my post. What I've stated is that the Irish government holds one even if it's probably not legally required. Lisbon probably didn't require a referendum, for example.

Nor does this make any difference to your original erroneous claim, for the reason stated above - the methods for granting and removing competences are identical. Indeed, if it comes to it, a competence can be allowed to lapse in practical terms by never being exercised, whereas the EU cannot legally exercise a competence it has not been granted, so if anything, lapse of competence is easier than granting of competence.

regards,
Scofflaw

So you have finally accepted that one "more europe" country can block competence deferral in the same way as one "less europe" country can block competence conferral, Thank you. This exposes the myth of conferral which spins that the EU only has powers we give it, which omits that those powers are essentially irreversibly lost once granted.

Scofflaw

BetterLisbon wrote: »

So you have finally accepted that one "more europe" country can block competence deferral in the same way as one "less europe" country can block competence conferral, Thank you. This exposes the myth of conferral which spins that the EU only has powers we give it, which omits that those powers are essentially irreversibly lost once granted.

Since your original argument was that competence conferral was a one-way street because the bar for deferral was set much higher than conferral, you really are making yourself look very silly here:

BetterLisbon wrote:

Half-True. Conferral is a one way street. Powers can only be deferred by unanimity too. So in reality once we confer a power its gone forever unless we withdraw from the union.

Your argument has been knocked down. Conferral and deferral are exactly the same process - treaty negotiation. Treaty negotiation is horse-trading - there's no such thing as "unanimity" in it, because there are no "votes", only discussions until some kind of acceptable compromise is reached. You can keep spinning that as being what you meant if you like, but it's pretty obvious you didn't have a clue what you were talking about.

amused,
Scofflaw

BetterLisbon

Scofflaw wrote: »

Since your original argument was that competence conferral was a one-way street because the bar for deferral was set much higher than conferral, you really are making yourself look very silly here:



Your argument has been knocked down. Conferral and deferral are exactly the same process - treaty negotiation. Treaty negotiation is horse-trading - there's no such thing as "unanimity" in it, because there are no "votes", only discussions until some kind of acceptable compromise is reached. You can keep spinning that as being what you meant if you like, but it's pretty obvious you didn't have a clue what you were talking about.

amused,
Scofflaw

Once again comptence conferral/deferral requires unanimous ratification of an amending treaty. As long as one country is unwilling to ratify such a treaty there is no change. Legally the threshold is the same but politically the deferral bar is impossibly high as the political classes of europe are overwhelmingly "more europe" except perhaps for a tory govt in the UK. In fact i challenge to name 5 competences that have been deferred since the EEC was founded to debunk my argument.

molloyjh

BetterLisbon wrote: »

Once again comptence conferral/deferral requires unanimous ratification of an amending treaty. As long as one country is unwilling to ratify such a treaty there is no change. Legally the threshold is the same but politically the deferral bar is impossibly high as the political classes of europe are overwhelmingly "more europe" except perhaps for a tory govt in the UK. In fact i challenge to name 5 competences that have been deferred since the EEC was founded to debunk my argument.

I think you'll find Scofflaws point is that why would it ever get to that stage. Why would a country negotiate and sign a Treaty that they refuse to ratify? It makes no sense.

Again what you are talking about is technically possible, but not ever likely in the real world. If a country did not agree with the changes being discussed to the point that they refused to accept it, the changes would never become a Treaty.

And I don't know how not being able to find 5 deferrals proves anything. How many have been sought?

Scofflaw

BetterLisbon wrote: »

Once again comptence conferral/deferral requires unanimous ratification of an amending treaty. As long as one country is unwilling to ratify such a treaty there is no change. Legally the threshold is the same but politically the deferral bar is impossibly high as the political classes of europe are overwhelmingly "more europe" except perhaps for a tory govt in the UK. In fact i challenge to name 5 competences that have been deferred since the EEC was founded to debunk my argument.

A lack of withdrawal of competences by itself doesn't prove anything, though - it might equally well be the result of a very conservative political process of granting them in the first place. The fact remains that just as one country can theoretically prevent a deferral, one country can theoretically prevent a conferral. The process is symmetric, and you haven't been able to demonstrate any additional process barriers to deferral than exist for conferral.

I think you've essentially stated in your post what you see the real problem as being:

the political classes of europe are overwhelmingly "more europe" except perhaps for a tory govt in the UK

The idea that this is the case is a purely personal one - to a federalist, in contrast, Europe's governments are appallingly anti-Europe. To a moderate eurocentrist like myself, they appear to be going at roughly the right speed - neither too fast nor too slowly - but often in the wrong directions, or doing it badly, or only pretending to do it. Some things that are notionally "European" aren't European at all in the sense of attempting to do the best for Europe as a whole - instead, they're simply European forums for national competition. The CFP is a good example, as is CAP. Indeed, the whole idea of doing things for "Europe" is more often honoured in the breach than the observance.

So, in summary, I think you've done a good job of demonstrating that your complaint that the bar is "impossibly high" for deferrals really rests entirely on your personal prejudices. Objectively, it's exactly the same as the conferral process, and whether one gets "more Europe" or "less Europe" depends on who the various member states elect as governments. Possibly you think that ought not to be the case, and we should have "less Europe" no matter what Europe's electorates think?

cordially,
Scofflaw

Cunsiderthis

BetterLisbon wrote: »

...As long as one country is unwilling to ratify such a treaty there is no change.. .

In theory you are right, but the way the EU is constituted if one country is unwilling to ratify a treaty, they are sent to bed without any supper until they change their opinion and vote to ratify the treaty.

We know that from experience.

BetterLisbon

Scofflaw wrote: »

A lack of withdrawal of competences by itself doesn't prove anything, though - it might equally well be the result of a very conservative political process of granting them in the first place. The fact remains that just as one country can theoretically prevent a deferral, one country can theoretically prevent a conferral. The process is symmetric, and you haven't been able to demonstrate any additional process barriers to deferral than exist for conferral.

I think you've essentially stated in your post what you see the real problem as being:



The idea that this is the case is a purely personal one - to a federalist, in contrast, Europe's governments are appallingly anti-Europe. To a moderate eurocentrist like myself, they appear to be going at roughly the right speed - neither too fast nor too slowly - but often in the wrong directions, or doing it badly, or only pretending to do it. Some things that are notionally "European" aren't European at all in the sense of attempting to do the best for Europe as a whole - instead, they're simply European forums for national competition. The CFP is a good example, as is CAP. Indeed, the whole idea of doing things for "Europe" is more often honoured in the breach than the observance.

So, in summary, I think you've done a good job of demonstrating that your complaint that the bar is "impossibly high" for deferrals really rests entirely on your personal prejudices. Objectively, it's exactly the same as the conferral process, and whether one gets "more Europe" or "less Europe" depends on who the various member states elect as governments. Possibly you think that ought not to be the case, and we should have "less Europe" no matter what Europe's electorates think?

cordially,
Scofflaw

O.K. if the tories win the election they have said they will seek repatriation of powers, i dont think they will get very far. So the powers conferred by the outgoing Labour government cant just be taken back by the incoming Tory government. This is an example of the "ratchet" as powers conferred as essentially gone for good unless there is a sea change in european political thinking. As parliamentary democracy is fundamentally flawed (especially in countries like germany where a 5% threshold exists for their party list) such a sea change may not touch the political classes.

View

The EU is founded on the premise that the member states will work toward an "ever closer Union". Any member state who joins, "signs up" to this concept.

To suggest, that it should somehow be easier to introduce measures that would prevent/hinder movement towards the objectives of the EU is just silly, particularly as these are objectives that the member states have agreed amongst themselves.

There is no obligation on the other member states to facilitate one of the member states pursuing a "wrecking agenda". Why on earth should there be?

BetterLisbon

View wrote: »

The EU is founded on the premise that the member states will work toward an "ever closer Union". Any member state who joins, "signs up" to this concept.

To suggest, that it should somehow be easier to introduce measures that would prevent/hinder movement towards the objectives of the EU is just silly, particularly as these are objectives that the member states have agreed amongst themselves.

There is no obligation on the other member states to facilitate one of the member states pursuing a "wrecking agenda". Why on earth should there be?

You have inadvertently hit the nail on the head there view. We have "signed up" to the concept but our politicians and EU advocates arent been 100% truthful with us when they spin about competences granted by consent etc.

View

BetterLisbon wrote: »

You have inadvertently hit the nail on the head there view. We have "signed up" to the concept but our politicians and EU advocates arent been 100% truthful with us when they spin about competences granted by consent etc.

The EU Treaties are (in most places) clear enough for anyone who bothers to read them. In them competences are clearly granted by agreement (i.e. consent).

There is no spin involved in stating the (100%) honest truth. With some exceptions, I'd say most pro-EU politicians and advocates here do endeavour to explain EU related matters in a truthful manner. Most of them have enough cop-on to realise that lies can come back to haunt you.

Regrettably, though very many of the anti-EU advocates seem to regard the truth as something to be avoided.

PS The last sentence was not directed at you.

Scofflaw

BetterLisbon wrote: »

O.K. if the tories win the election they have said they will seek repatriation of powers, i dont think they will get very far. So the powers conferred by the outgoing Labour government cant just be taken back by the incoming Tory government. This is an example of the "ratchet" as powers conferred as essentially gone for good unless there is a sea change in european political thinking.

No, it's true that they can't just be "taken back" - having been agreed to be conferred in common, their formal repatriation also has to be agreed in common, and written into a Treaty. Much as you try to ignore the fact, though, this does not require any sort of "unanimity" - it only requires the necessary negotiation.

Something that's also missing from your analysis is that if the UK makes it clear that it will not co-operate with the EU on the competence in question - that is, will not implement Directives nor enforce Regulations - and will seek on every possible occasion to block legislation or action under that competence, then that competence will essentially become a dead letter, because the EU isn't a tyranny but a co-operative framework. If a country really doesn't want to accept something (as opposed to making political noises for domestic consumption), it really cannot be forced to accept it.

BetterLisbon wrote: »

As parliamentary democracy is fundamentally flawed (especially in countries like germany where a 5% threshold exists for their party list) such a sea change may not touch the political classes.

I see.

cordially,
Scofflaw

BetterLisbon

View wrote: »

The EU Treaties are (in most places) clear enough for anyone who bothers to read them. In them competences are clearly granted by agreement (i.e. consent).

There is no spin involved in stating the (100%) honest truth. With some exceptions, I'd say most pro-EU politicians and advocates here do endeavour to explain EU related matters in a truthful manner. Most of them have enough cop-on to realise that lies can come back to haunt you.

Regrettably, though very many of the anti-EU advocates seem to regard the truth as something to be avoided.

PS The last sentence was not directed at you.

I accept conferral is by consent but EU advocates tend to leave out the essentially irreversible nature of conferral. You can tell the truth but dress it up in misleading clothing (i.e. propoganda). While i accept that lies are told by some sceptics i would hold advocates at least as guilty. For example Lemass stated clearly that entering the European club meant joining a federation with neutrality ending and he was right. However EU advocates have always spun about neutrality being protected (changing the definition of neutrality at every treaty btw.) and there being no drive to a federation.

BetterLisbon

Scofflaw wrote: »

No, it's true that they can't just be "taken back" - having been agreed to be conferred in common, their formal repatriation also has to be agreed in common, and written into a Treaty. Much as you try to ignore the fact, though, this does not require any sort of "unanimity" - it only requires the necessary negotiation.

Something that's also missing from your analysis is that if the UK makes it clear that it will not co-operate with the EU on the competence in question - that is, will not implement Directives nor enforce Regulations - and will seek on every possible occasion to block legislation or action under that competence, then that competence will essentially become a dead letter, because the EU isn't a tyranny but a co-operative framework. If a country really doesn't want to accept something (as opposed to making political noises for domestic consumption), it really cannot be forced to accept it.



I see.

cordially,
Scofflaw

You are really confusing me now. Negotiations are comleted when everyone signs the treaty which is unanimity.
As for the second point i take it you have heard of majority decisions enforceable by the EU institutions.

Scofflaw

BetterLisbon wrote: »

You are really confusing me now. Negotiations are comleted when everyone signs the treaty which is unanimity.

Not really, because "unanimity" is something that applies to votes. However, even leaving aside the exact meaning, your argument relies on a party to the Treaty agreeing that point X should be in the Treaty, then refusing to ratify the Treaty because it contains point X. It's certainly possible to do such a thing, but it's called "negotiating in bad faith".

Assuming one wants to be taken seriously at negotiations, one is better off negotiating in good faith - which means that the important step here is the negotiations.

BetterLisbon wrote: »

As for the second point i take it you have heard of majority decisions enforceable by the EU institutions.

Democracy is broken in Germany because the EU can use majority voting? What did the list system threshold have to do with it then?

slightly baffled,
Scofflaw