Saturday, 7 October 2017

What Can The EU Actually Do?

My last post on the limits of EU authority turned out to be slightly controversial. This time I'm going to dial up the confrontation to a huge 2.5/10 by continuing on the same theme as last time.  That theme, of course, is the thorny issue of the EU's muted response to the appalling scenes of police violence aimed at undermining a democratic process in Catalonia. Before we proceed I just need to make it clear that if I was from Catalonia and didn't have a strong view on independence prior to last Sunday I most definitely would have one now. The actions of the Spanish government were so appalling that it is all but impossible to support the constitutional status quo. The question is what the EU can do about it today and what it can do in the longer term.

I'm going to start by repeating what I said last time: nobody in the EU has the power to speak out about Spain's constitutional or policing arrangements on behalf of the EU or its membership. There are plenty of opportunities for MEPs to speak out in an individual capacity; party groupings in the European Parliament can formulate policy on the issue;  parliamentarians across the EU's membership can say exactly what they want. National governments can also speak out but already the toing and froing of the many coalition arrangements starts to limit their ability to do so. You know what? We've seen all of this happen. It's disappointing that it didn't happen more but we all get to participate in the election of our political representatives. People of Europe, you know what to do. The key question is whether there exists an office holder of the EU who can speak out on behalf of the entire EU on the narrow issue of Spanish policing? Is there an institution of the EU that can formulate an immediate political view on the constitutional affairs of a member nation? Is there an individual or institution of the EU that can take immediate punitive measures against the Spanish government without consultation or formal investigation? The answers to all of these questions is that no such individual or institution exists. The EU is a union of collective action through consensus rather than a government itself. The only power it has is the power given to it by its membership.

The EU's areas of competence are really quite wide but they also have their limits. In each of these areas of competence the EU acts by creating laws that are either directly applicable (Regulations) or by issuing instructions to national governments to add laws to their legal framework that uphold agreed specifications (Directives). Extending the range of competences can be achieved by amending treaties or creating new ones. I think everyone has heard of the Lisbon treaties. This was a prolonged round of negotiations that attempted to extend the range of the EU's competences. It was controversial, to say the very least. Attempts to create a European Constitution were abandoned after France and the Netherlands rejected it at referendum. Attempts to introduce a raft of crime and justice initiatives were rejected by the Irish and only accepted after guarantees were made about the scope of their legal interpretation. The UK, of course, opted out of most of the crime and justice initiatives but then opted back in to some of it after Theresa May decided that the European Arrest Warrant had more positives than negatives. The key point is that the European Commission doesn't just plan a power grab of extended competences before forcing it on its membership. The EU's competences are limited to those powers given to it by agreement of its membership.   Here's the crunch: the EU does not have a mandate over policing or constitutional affairs because nobody gave it that power. It's hard to point at Spain and say that it broke EU Regulation 9711 (Police forces of the EU)  paragraph 7 section c because nothing like that exists. The Spanish government and the Spanish police might have violated Spanish law but that is purely for Spanish courts to decide in the fullness of time. I just want to point out that Spain has not yet suspended its legal or judicial systems.

Many commentators have pointed out the possibility of human rights violations in Spain.  Specifically, the adoption of the "Charter Of Fundamental Rights Of The European Union" has been mentioned.  The Charter certainly enshrines the European Convention on Human Rights (ECHR) into EU law but in a very limited way that does not extend to Spanish policing.  What does the Charter actually do?  Well, it actually has several consequences.  The first is that it forces EU institutions and bodies to uphold the ECHR.  Secondly, it ensures that directly applicable EU law upholds the ECHR. Thirdly, it ensures that the implementation of EU law by member states does not in any way violate the ECHR.  Finally, it allows citizens to take their own government to  an EU court if the ECHR has been breached but only within the limits I just described. I'm just an amateur blogger but my conclusion is that the Charter is limited to the competences of the EU.  It does not allow a citizen of a member state to take their government to an EU court (I would guess that would be the Court of Justice of the European Union) unless it involves a question related to EU law.  Spanish policing is not an EU competence, it does not involve the implementation of EU law and it does not involve directly applicable law.  Spanish policing is a matter for Spanish courts rather than EU courts.  This isn't what we want to hear but I'm afraid to tell you this is what was agreed in the Lisbon treaties.  The suppression of the referendum in Catalonia falls beyond the competence of EU courts and the adoption of the Charter does not change that.

 All EU nations must also be members of the Council of Europe.  That means upholding the European Convention on Human Rights and recognising judgements made by the European Court of Human Rights ((ECtHR).  If a member nation was found to be in contravention of the ECHR and refused to accept the judgement of the ECtHR then they could be suspended or expelled from the Council of Europe.  Membership of the Council of Europe is a basic EU obligation so EU membership would also be suspended.   There are three things to think about here. The first is whether Spain has acted in a way that violates the ECHR. The second is whether Spain rejects the judgements of the ECtHR and effectively suspends its commitment to a definition of human rights shared across the EU. The third is whether the EU will recognise that action as a breach of Spain's obligations and proceed to suspend or expel Spain from the EU. Many readers here have read other commentators make definitive statements that human rights have definitely been abused and that the EU must take immediate and punitive action against Spain as a consequence.  I hope I've given some flavour of the arguments against that already but I'm going to go into this in a bit more detail in the following paragraphs.

Has Spain contravened the ECHR? That isn't immediately clear. There are many commentators who are a) clear in their minds that human rights have been violated and b) believe that the EU should immediately accept that view as a binding legal judgement. My sympathies lie entirely with the Catalonians but I am not a human rights judge tasked with upholding a complicated matrix of rights and a mountain of case history. Like almost everything, human rights are complicated and in many cases judgements must strike a delicate balance. For example, I have the right to religious expression but do I also have the right to wear religious symbols at work? In this case, Spain has the legal right to protect its territorial borders and the right to use force to do so.  This isn't what we want to hear but I'm afraid that protecting territorial borders is a basic duty of state. The Catalonians, on the other hand, have the right to request self determination and the right to free expression. At first glance this might appear simple but after 10 minutes of thought I hope we can all accept it is something more complicated than we first imagined. We cannot expect the EU to accept that Spain has breached its treaty obligations because it is not the EU that has the final word on human rights. The final word on human rights violations falls to the European Court of Human Rights. Until we have a judgement we can't expect the EU to do anything.  This is not going to happen today, next week or next month.  We need to be patient.

What happens if Spain is found to be in violation of the ECHR and then proceeds to ignore the rulings of the ECtHR?  Failure to uphold the ECHR is far from commonplace but it does happen from time to time.  That alone is not enough to suspend Spain from the EU - if it was enough then there would be very few states left in the club.  Failure to uphold the judgements of the ECtHR, on the other hand, is a much more serious situation because it suggests that violating human rights is a deliberate strategy rather than a disagreement on legal interpretation.  How often does that happen?  The problem here is that failure to uphold judgements also happens from time to time.  Failure is a strong word and I should qualify it with an example.  The UK government lost a human rights case involving a blanket ban on prisoner voting rights.  They lost the case but then Westminster voted down an amendment to UK law that would have implemented the judgement.  The UK government is in a precarious situation where it is a member of the Council of Europe but failing to uphold the basic obligations of membership: repeated rulings against the government have not resulted in a relaxation of the blanket ban.  Despite that, the UK remains in the Council of Europe and the EU (ok, not for long but that's another story).  A stalemate seems to have settled over the case with the UK making vague noises about future changes to the law and the Council of Europe issuing warnings that the UK needs to take action but without imposing any penalties in the interim.  I picked on the UK here because I happened to be familiar with the case but I'm sure the UK isn't the only nation struggling to implement the ruling on prisoner voting rights.  I'm sure some digging around would have brought up some other cases, too.  The point I'm  trying to make is that there are plenty of ways that states can prevaricate on implementing ECtHR rulings without being suspended from the Council of Europe.

The EU requires member states to be signatories to the ECHR and members of the Council of Europe.  The UK has for some years been in dispute with the courts of the Council of Europe yet it remains a member and a signatory to the ECHR.  It is likely not the only state in this situation.  For as long as the UK remains a member of the Council of Europe it can also remain a member of the EU.  That would also be true of Spain in the most extreme case I considered here.  Of course, suspension of membership of the Council of Europe would result in Spain being also excluded from the EU.  Article 50 was actually constructed for exactly this  kind of case - it was as much a mechanism to expel an unwanted member as it was a mechanism for a state to voluntarily leave.

In the case of the Catalonian referendum Spain has not yet been found to be in breach of the ECHR.  It has not yet put itself in a situation where it deliberately ignores the judgements of the ECtHR.  It has not yet been suspended from the Council of Europe.  My last post gave more detail on this point but it is also not immediately clear if Article 2 of the Lisbon Treaty has been breached and even if it was agreement about that would take time because the EU proceeds by law and process rather than knee-jerk reaction (see Article 7 of the Lisbon Treaty).

Why is everyone screaming at the EU?  It's because the myths of Farage and the Daily Express have taken root deep in society, even with people who are the exact opposite of Farage and the Daily Express.  The EU is not a federal super-state; neither for good nor bad has it all-conquering powers; Jean Claude Juncker is not the most powerful man in Europe.  We should be thankful for all of that because if the EU really had the powers to intervene in Spain we'd have created a terrifying undemocratic monster that would control literally every aspect of our lives without any hope of accountability.  Like all institutions, the EU is imperfect.  It has to juggle the needs of citizen and state, business and consumer, national sovereignty and harmonised law.  Over the years it has struck a balance between all of these competing requirements.  It is what it is but many think it is something else entirely.  That misunderstanding has directed anger away from the politicians and heads of government who could make a real difference and towards an institution that acts under legal constraints limiting its ability to take any action at all.

Over and out,


PS Alyn Smith lays out the tensions in the EU that lie between fast decision-making, consensus politics and the need to avoid a federal super-state here.  The EU is an imperfect institution but we need to remember that institutions are always imperfect.

PPS James O'Brien provides some great background to the situation here.

Update:  I had a bit of a rant over at commonspace on an article that finally tested my patience.

Update:  I'm going to be away for the next few days so I might be a bit slow responding to any future comments. Sorry about that.


  1. Excellent stuff Terry. As always you make me think, which is a good thing in a blogger. We've traded comments on this in a number of places now (I've certainly lost my train of thought even if you haven't) & I replied to you several minutes ago in fact. But this article makes me reconsider my condemnation of 'the EU' & redirect that as a condemnation of certain high level EU post holders (as well as the governments of several member states). But that said, when do supposedly personal comments from the likes of Guy Verhofstadt become distinguishable from official statements from an EU official? And I will reiterate that while you rightly point out that the EU can't take any action against Spain now the messages coming out have been supportive of Spain rather than neutral.

    The one thing I will pick you up on here is the implication that anti EU feeling is as a result of Farage & the Daily Mail et al; while that is most certainly true for many on the Twitter-sphere it is most certainly not true for the likes of me & I very much doubt that Craig Murray, who you link to, is influenced by them either. It would be very wrong to assume this is a continuation of Brexit feelings, though the Brexiteers are making good use of the propaganda opportunity.

  2. I honestly did not mean that anyone critising the EU is automatically expressing an extension of Farage's views. There is no commenter here in the same category as Farage or the Daily Express. In fact, everyone here is the exact opposite of that. I see now that I chose my words poorly but what I meant was that ideas of the EU's over-arching power first permeated from the likes of Farage and then slowly influenced everyone without us ever being aware of it. Literally every newspaper, liberal and authoritarian, has taken on the meme of the EU being a federal super-state and ran with it. I see it all over even the most progressive media and blogs. It's an unstoppable idea because it can either be seen as automatically bad or it can be seen as a force for good. Until I started blogging about the EU I also thought it had the powers frequently ascribed to it. We've been comprehensively failed by our media and our political leaders who either haven't bothered to uncover the truth or have systematically lied to us.

    Criticism of the EU is perfectly natural because all institutions get it wrong, make poor judgements, and ultimately serve themselves. In the interest of balance, I should really write a blog about the failings of the EU. The way it failed to handle the refugee crisis was genuinely shameful, for example. There are also some bloody awful MEPs with disturbing ideas. It is a giant and messy compromise.

    Guy Verhofstadt is an elected MEP. It's fair to criticise his comments on this issue. I'm going to do it right now: I'm very disappointed that he didn't go further than a neutral statement criticising the violence. He doesn't, however, speak for the EU or the European Parliament. I'm assuming he does speak on behalf of his parliamentary grouping, the snappily titled Alliance of Liberals and Democrats for Europe Group, because he is its leader. Guy Verhofstadt, if you're listening, I'm disappointed and frustrated that you haven't done more to secure a democratic means by which the matter of Catalan secession can be peacefully decided. He's pretty much done nothing.

    There have been, ahem, mixed messages from all over Europe, not just from MEPs. This is disappointing and frustrating. Where is Corbyn? Where is Johnson? Where is Merkel? Apart from Alyn Smith I've not heard much from Scottish MEPs. I was obviously glad to see the First Minister take a clear position. Other leaders have joined her, just not enough.

    There's a funny thing, though, with European political culture. A lot of the time it is quite different from UK politics in that it is far less confrontational. I'm guessing coalition governments naturally lead to a more consensual approach. I'm going to wonder out loud if we read more into statements than we should because we're more used to a decisive, confrontational stance. It always strikes me that Europe places far more importance on consensus and agreement than we do in the UK. I even see that at work. I might argue that Guy Verhofstadt has a natural tendency to seek consensus, to calm the flames, to act as intermediary. I obviously don't know him so can't convincingly make that argument but it's something to bear in mind. The other side of that is that it might be argued that all that time spend reaching consensus just kicks the can down the road. The EU has shown itself to be rather "good" at that.

  3. Problem with attitudes to the EU goes way beyond Farage and the Daily Express. In the midst of the Brexit campaign according to Craig Oliver in his book Unleasing Demons on the campaign David Cameron reflected that that they were up against 40 years of unremitting low key negativity about the EU - bent bananas, unaccountable burocracy etc - none of it really true and in that time very little if any positive news and comment.

    I am strongly in favour of an independent Scotland in the EU but am very concerned that there is little time to get positive messages over for a successful argument for Indy Scotland in Europe

    1. I haven't lived in the UK for 8 years so I don't know what people really think any more and when I did live there nobody ever mentioned the EU. The last few days have made me very concerned that these myths have travelled further that I had ever imagined. I have to be honest that if I hadn't started this blog I would have also thought the EU had more power than it actually has. I would probably also be questioning my commitment to a pro-EU indy Scotland. This stuff is deep and pervasive and hard to shake off. I'm also worried time is running out.

    2. I can see exactly what Tom is saying.

      I never gave much thought to the EU. Clearly I reckoned like every other level of governance from local authorities to the UN, I thought it came with good and bad. Over the last 20 years the EU has been good to me, providing funding for work that I have done, and arranging a Leonardo Da Vinci exchange in Grenoble, where I learned so much. So I had friendly feelings even if I sometimes shook my head at the stupidity of some of it... two parliaments for example?

      Over many years I've been aware of the negativity shown by the tabloid press to the EU. A negativity which has never been discouraged by governments, or either colour, presumably because, while the Daily Mail is blaming Brussels for shortcomings, it is not blaming London. In this I don't recall Cameron being any less inclined to let Brussels shoulder the blame.

      This, of course, hasn't been helped in any way by journalists like Boris Johnson inventing stories about the EU to alleviate their childish boredom and the really boring mundane stuff that comes out of Brussels. Straight bananas, anyone?

      I can remember being told that 80% of our laws were made in Brussels and wondering if that were anything like true, why then, we needed 650 MPs, +/- 1000 lords, a royal family and 129 MSPs.

      Given too, the number of ministers and ministries that we had to fund, I wondered if it was true that they all spent their days in Pall Mall clubs or at the races, while decisions were made over the Channel.

      But people believed this despite how unlikely it was. And of course, the anti EU propaganda of the likes of Farage, IDS, Gove, intensified in the tabloids during the period of the campaign.

      Not nearly enough was done by the likes of Cameron to counter the utter nonsense of many of the claims made.

      But politicians, having allowed the EU to be used as a scapegoat for so many years, could hardly start debunking all this "it's the EU's fault" garbage that the Leave campaign used against them.

      It's hard to complain about Johnson talking about £350 million a week, when you've blamed Brussels for how much it costs.

      I wonder, no matter what kind of deal is eventually hammered out, how the main protagonists will explain to the tabloid readers who voted so firmly for Brexit, why they have lost their jobs, their mortgages have gone up, or their foreign holidays now priced out of possibility!

    3. Apologies for the late reply - I've been away all week and my stupid phone wouldn't let me open the comments section.

      The untruths about the EU are deep and pervasive and they've become normalised. They come from the left and the right, from landed gentry and class warrior. Writing this blog has been a genuine eye-opener because it made me realise what it really is; its limits and its functions.

      I've always been pro-EU for reasons very similar to the ones you outline here. I benefited from EU research funding that took me to Germany as a young scientist. Closer to home, I've cycled on countless roads and paths in the Highlands that were built with EU money. Even my move to Switzerland was only made possible by the EU. Just this week I was at a conference in Germany that used a lot of UK events staff to set up the stages and the video feeds. That will no longer be possible after the UK leaves the EU.

      The wheels on the Brexit bus are starting to come off but public opinion is not shifting with it. It's become an entrenched emotional issue for Leavers who just aren't interested in facts and will easily explain away the economic hardship by blaming the EU, remainers, local issues etc. There is no end to this mess.

  4. Terry,

    I meant to add that I value your comments on the whole Brexit situation and look forward to them. Keep them coming.

    1. Thanks for your encouragement! I shall keep them coming.

      I'm most definitely not an expert on this - I just find out stuff and try to share it with anyone prepared to accompany me on what is, to be perfectly honest, quite a dull journey.

  5. Thank you for the clarifications.

    I think that the limitations in the powers of the EU can be frustrating at times, but then I look across the pond where an awful lot of power is vested in one man (a man only, at least up to this point). Having considered that, I think I would prefer to stick with the European model.

    1. I also think it's good that there is no single person or institution in charge of the EU. At times that can also be frustrating. Understanding the trade-offs is one of the worst failures of Brexit.

  6. In the land of the blind the one eyed man is king. On the subject of the EU you've got both eyes open which makes you as close to an expert as anyone around here, Terry.

    1. Honestly, I just read attempt to read some documents, write down what I found out, add a pop video with semi appropriate song title and occasionally go on massive rants about the insanity of Brexit. It's an odd mixture with a niche audience.

  7. Replies
    1. Thanks!

      Does anyone read commonspace? I never get the impression that it is a gold standard for digital media. I really enjoy Craig Dalziells's blogging as "the common greeen" and have learned a lot from his detailed analysis. commonspace, on the other hand, too often features opinion pieces that are disguised as journalism. The article I ranted on was an example of that. I've nothing at all against campaigning pieces but it's something that blogs do far, far better because they are able to develop an individual voice and more often than not have a lively and informative comments section. Commonspace doesn't do very well at any of that - the article authors rarely engage with the limited comments they receive.

    2. The only time in recent memory that I've read Common Space was reading that article that you took exception to & only because I wanted to read what you had said therefore thought I should know what you were taking exception to. On the other hand, I do read Craig's blog from time to time.

  8. Not trying to stir things up, Terry, but what are your thoughts on iScotland being in EFTA rather than the EU? My fairly ill informed opinion is that while the UK being in the EU is a 'good thing', iScotland would be better off in EFTA, particularly if rUK is out of the EU with a bad deal.

    You might be interested in this blog post too

    1. That's a great question. To find the best solution we first need to understand the problem. The capricious nature of the UK government means that understanding the problem remains an impossibility. There are definitely scenarios where EFTA/EEA membership offer more advantages than EU membership.

      Everything boils down to the relationship between rUK and the EU. If rUK severs its ties with the EU and embarks on a journey of regulatory divergence governed only by WTO schedules then EFTA/EEA seems like a winner because iScotland will need to be able to independently negotiate a FTA with rUK. The only way to do that is to leave the Customs Union, which means leaving the EU. If, on the other hand, rUK ends up being a regulatory annexe of the EU in a semi-parmanent state of "transition" then EU membership is there for the taking. I'd generally opt for EU membership because there are so many advantages for a small nation: regulatory stability, access to international markets, power of veto on treaty changes giving a voice out of proportion to size.

      To be perfectly honest, it is far too early to have a strong view either way. The data simply doesn't exist to have a view that isn't more emotional than practical.

      I tried to air some of the arguments a while back but I stupidly chose to do that during the General Election.

      I think it's time for an update!

    2. Cheers Terry. Both for your reply here and for you much more detailed response over on John Robertson's blog.


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