Thursday, 7 October 2010

War Of The Supranationals

As you are probably aware Article 6 (2) of the Lisbon Treaty states:
The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.
This means that it is not only a desire but a duty for EU institutions to accede to the European Convention of Human Rights which is supervised by the European Court of Human Rights based in Strasburg. The EU institutions will be subject to rulings by the non-EU Council of Europe.

But of course the accession has not been that simple so far. The negotiations have been protracted and...quite frankly a bit of a mess. (The now defunct blogger Julien Frisch has some good posts on the various problems here.)

However, the ECHR blog points me to a recently released working paper on the accession question (downloadable here) which highlights some other anomalies and questions that need resolving. This one caught my eye:
The difference to cases involving secondary EU law is that violations can only be remedied through a Treaty amendment following the procedure set out in Article 48 TEU. Normally such an amendment requires the consent of and ratification by all Member States*. This means that the EU institutions cannot remove the violation by themselves. They are dependent on the Member States.

This has already been acknowledged in the Matthews case, where the EU Act on Direct Elections was held to violate the right to free elections of Article 3 of the First Protocol to the ECHR and the United Kingdom as a Member State of Member State of the EU was held responsible for that violation.

For the question of the correct respondent, we should therefore apply the solution found above: where a Member State acted, that Member State is the correct respondent; where the EU acted, it is the EU. This should be independent of whether the alleged violation is found in primary or secondary law.
I'm sure having read that some of you have worked out where this is going. Not only can another unaccountable institution effectively force changes in the Lisbon Treaty but a successful human rights challenge, that as a consequence forces the EU to invoke article 48, could be enough to trigger a referendum in this country (if Cameron finally gets round to passing a 'referendum lock'. No wonder he's reluctant).

This scenario is probably unlikely - a few weasel words will probably allow him to wriggle out of any 'referendum lock' but it does highlight the potential consequences of the Lisbon Treaty, and that the more we integrate, the harder it becomes for the Tories to 'pretend' they are euroceptics. Something has to snap.

*It's worth noting that the infamous self amending part of Lisbon - Article 48 - has 'implicit' and 'explicit' clauses. All bar one are explicit, i.e. any self-amendment to the Treaty requires the UK Parliament's permission (along with the other 26 member states), however the notorious 48.7 clause is implicit; basically Parliament always agrees to amendments unless it specifically objects.

No comments:

Post a comment