Democrat - July 2007(Number 103)

Infamous 'red lines'

After signing the Exclusive Mandate for the IGC on the EU Constitutional Treaty, Tony Blair declared it was a good deal because: "The four essential things that we in the UK required in order to protect our position have all been obtained."

Unfortunately for the Government, according to Open Europe, legal experts have begun to question whether safeguards placed to attempt to protect its other "red lines" are worth the paper written on. To start with, the 'red line' securing a safeguard on social security rights for migrant workers was never up for negotiation.

The Government insisted it did not want the Charter on Fundamental Rights to become "legally binding" in Britain. But the new draft treaty states that "the article on fundamental rights will contain a cross reference to the Charter, giving it legally binding value." Open Europe interviewed several European Court of Justice (ECJ) judges who said the Charter would change national laws, despite the safeguards. This is crucial, as it would be the ECJ who would ultimately decide on how to interpret the Charter if the Constitution is ratified.

One EU judge said it would be "a basis for challenging national law". Even the ECJ President explicitly refused to deny that the Charter may be used to change member states' laws. Several judges said that the Charter, despite the "safeguards", would give the court "more power".

The Government inserted a clause into the revised Constitutional Treaty which it hopes gives Britain an "opt-out" from the Charter, but legal experts have already called this into question including the legal advisor to the House of Commons European Scrutiny (Select) Committee.

Despite Government assurances that giving up vetoes in foreign policy was a "no-go area", the revised Constitution introduces majority voting in seven areas of foreign policy. The most important of these would be on proposals made by the new EU Foreign Minister - or High Representative. Foreign Secretary Jack Straw had said this was "simply unacceptable" - the Government has now accepted it.

At the summit, Tony Blair strove to keep foreign policy inter-governmental and outside the jurisdiction of the ECJ. But according to Foreign Office officials who spoke to the News of the World (24 June), this failed. The guarantee Blair had written into the new treaty was not a "protocol" but a "declaration" which is a worthless promise and not legally binding. Hence "Brussels will gradually expand its role in security, defence and foreign policy".

Lastly, under Justice and Home Affairs, another of the Government's 'red lines' was to maintain control over crime and policing issues. What was agreed was an opt-in arrangement whereby Britain will have to decide whether to participate in new measures or not. But once Britain has opted-in, it cannot then pull back out even if the resulting law is not to its liking and it is outvoted by QMV.

Even more significant, under the revised Constitution, the ECJ gets full jurisdiction over justice and policing. This makes the ECJ the highest criminal court in the land, clearly breaching previous promises and crossing the red line. The Government admitted that it was a big transfer of national sovereignty

Giving the Court competence is a bigger transfer of power than giving up the veto. With QMV Britain supported by other Member States could block proposals. But if the court makes a judgment we don't like there is simply no comeback.

The treaty would sweep away restrictions so that the EU Commission would no longer act on Britain's behalf in areas such as justice and policing. This means that for the first time unelected EU Commissioners - rather than national ministers - will negotiate extradition treaties and deportation agreements with non-EU countries.

The upshot of the analysis and scrutiny is that these 'red lines' were indeed a distraction from the guts of what was agreed to at the EU summit and Mr Blair knew all along what he was doing. In time Mr Brown of course can blame Mr Blair!