photo credit: Gernot Poetsch

Not too much closer union

In a wide-ranging and fascinating judgement, the highly activist German Constitutional Court has ruled that the Treaty of Lisbon is compatible with its Basic Law. There are, however, certain provisos that significantly affect the force of some of the parts of the Treaty that could lead to deeper integration without an amending treaty. It also has a lot to say on the future scope of European integration.

The press release is certainly worth reading in full, and it’s only seven pages if you copy and paste into Word – useful for highlighting. If you have time to read the judgement in full it’s more like 119 pages, but I think for those geeks of European integration and judicial philosophy out there it will be well worth a look.

I was going to wait to comment on this before I’d seen what the highly-recommended German Law Journal had to say about it (its discussion of a 2006 ruling is a great example). Then I noticed this evening that Nosemonkey had come out with some very interesting analysis into the ruling, and thought I’d try and get my initial thoughts down before seeing what any more people had to say on the matter.

As with many decisions it hands down, Germany’s Constitutional Court (or Bundesverfassungsgericht) did not pull any punches or avoid the opportunity to delve into areas of deep political and philosophical debate.

On a very simplistic level, the most important thing to point out is that the court upheld the compatibility of the Lisbon Treaty with Germany’s highest law, its Grundgesetz, or Basic Law*. However, in striking down a law on the participation of the Bundestag and Bundesrat in the EU post-Lisbon, it  made several highly significant rulings, both on the interpretation of the Treaty required in order to maintain this compatibility, and on the direction and endpoint of European integration. A fuller summary of its ruling is below, but essentially, it argued that any changes to Treaties (which, under Lisbon, could in certain circumstances take place without another inter-governmental conference) must be approved by the German Bundestag (and on occasions the Bundesrat too – the upper house), rather than simply a decision of the government.

Some of its strongest rulings came on crime and justice cooperation. It ruled that the crime and justice competences must be interpreted “strictly – on no account extensively -, and their use requires particular justification“. Additionally, where Lisbon envisages a fairly broad power for the Council to extend the list of serious crimes which would come under the EU’s competence, addition to this list would require primary legislation in Germany. The German Basic Law, the court ruled, does not permit a “Kompetenz-Kompetenz”. That is, it does not permit “the transfer of competence to decide on its own competence”.

European integration: obligatory for the German government, but tightly restricted

The Constitutional Court powerfully states that “The constitutional mandate to realise a united Europe which follows from Article 23.1 of the Basic Law and its Preamble means with regard to the German constitutional bodies that participation in European integration is not left to their political discretion.”

Germany is obligated to participate in European integration under its Basic Law. However, the Court significantly restricts what it means by participation in European integration:

European unification on the basis of a union of sovereign states under the Treaties may, however, not be realised in such a way that the Member States do not retain sufficient room for the political formation of the economic, cultural and social circumstances of life… This concerns in particular the administration of criminal law, the civil and the military monopoly on the use of force, fundamental fiscal decisions on revenue and expenditure, the shaping of the circumstances of life by social policy and important decisions on cultural issues such as the school and education system, the provisions governing the media, and dealing with religious communities.

European Union as a federal entity: not only unconstitutional, but impossible within the existing constitutional order

The judgement argues that to create a European federal state would require a new constitution. This is because according to the Basic Law (Art. 79.3), “An amendment of this Basic Law affecting the division of the Federation into Länder, the participation in principle of the Länder in legislation, or the basic principles laid down in Articles 1 and 20, is inadmissible.” Article 20 states:

Article 20 (Basic principles of state order, right to resist).

(1) The Federal Republic of Germany is a democratic and social Federal state.
(2) All state authority emanates from the people. It is exercised by the people by means of elections and voting and by separate legislative, executive and judicial organs.
(3) Legislation is subject to the constitutional order; the executive and the judiciary are bound by the law.
(4) All Germans shall have the right to resist any person seeking to abolish this constitutional order, should no other remedy be possible. (inserted 24 June 1968)

The transition into a federal European Union can thus not happen through a series of intergovernmental conventions. It can only happen if the German Basic Law ceases to be in force, which would occur “on the day on which a constitution adopted by a free decision of the German people comes into force” (Art. 146). This need not be a referendum: the Basic Law had to be ratified by two thirds of state (Land) legislatures, and Germany has been very suspicious of plebiscites since the end of the Weimar Republic. In any case, Article 20.4 provides the right of insurrection against any person seeking to abolish the constitutional order. The point, then, is that a federal European state would require an overthrow of the German constitutional order which renders this idea virtually impossible. Germans would have a legal right to insurrection against such a federal European state.

A federal European state, which in any case was unlikely, is expressly forbidden within the context of Germany’s existing constitutional order.

Democratic legitimacy of European institutions

The Constitutional Court went further than it needed to, in discussing the European project itself. It made some not-too-subtle hints that it might not be so accommodating in accepting the constitutionality of future Treaties. It, furthermore, stridently criticised the lack of powers of the European Parliament in stating that

The further development of the competences of the European Parliament can reduce, but not completely fill, the gap between the extent of the decision-making power of the Union’s institutions and the citizens’ democratic power of action in the Member States. Neither as regards its composition nor its position in the European competence structure is the European Parliament sufficiently prepared to take representative and assignable majority decisions as uniform decisions on political direction.

It also indicated a problem in that “its election does not take due account of equality” – which is a product of the 27 member states being able to decide their own electoral systems for choosing their country’s representatives in the European Parliament. It cannot have a politically decisive effect in European institutions.  As a result, it states:

Due to this structural democratic deficit, which cannot be resolved in a Staatenverbund [union of sovereign states], further steps of integration that go beyond the status quo may undermine neither the States’ political power of action nor the principle of conferral.

This is very significant stuff. The ruling insists, at least to an extent, on a democratic deficit, if the existing constitutional order is to be maintained. Power can be delegated to European institutions only to a limited extent, and only through member states’ constitutional bodies as representatives of the people, in the Council of Ministers.

As long as, consequently, no uniform European people, as the subject of legitimisation, can express its majority will in a politically effective manner that takes due account of equality in the context of the foundation of a European federal state, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority.

The Constitutional Court accepted the constitutionality of the Lisbon Treaty. But in reaffirming the inter-governmental nature of the EU, it underscored the right of Germany’s national parliament to participate in the legislative process, striking down the verbosely-titled “Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters”. In doing so it put definitive limits on the extent to which “ever-closer union” may continue.

***

Briefly, it ruled that:

1. “The approval of [...] Germany in simplified revision procedures requires a law”, rather than merely the assent of the government. (3bb)
2. “The representative of the German government in the European Council may only consent to a Treaty amendment brought about by the application of the general bridging clause if the German Bundestag and the Bundesrat have adopted … a law”  (3cc)
3. “The veto right in the Council may not be waived without the participation of the competent legislative bodies even as regards subject-matters which have already been factually determined in the Treaties. The representative of the German government in the European Council or in the Council may therefore only consent to an amendment of primary legislation through the application of one of the special bridging clauses on behalf of the Federal Republic of Germany if the German Bundestag and, to the extent that this is required by the provisions on legislation, the Bundesrat, have approved this decision” (3dd)
4. “Also the flexibility clause under Article 352 TFEU can be construed in such a way that the integration programme envisaged in the provisions can still be predicted and determined by the German legislative bodies. With a view to the undetermined nature of possible cases of application, the use of the flexibility clause constitutionally requires ratification by the German Bundestag and the Bundesrat” (3ee)
5. “The Federal Constitutional Court’s competence of review is not affected by Declaration no. 17 on Primacy annexed to the Final Act of the Treaty of Lisbon. The foundation and the limit of the applicability of European Union law in the Federal Republic of Germany is the order to apply the law which is contained in the Act Approving the Treaty of Lisbon, which can only be given within the limits of the current constitutional order.” (3ff)
6. “The competences that have been newly established or deepened by the Treaty of Lisbon in the areas of judicial cooperation in criminal and civil matters, external trade relations, common defence and with regard to social concerns can, within the meaning of an interpretation of the Treaty that does justice to its purpose, and must, in order to avoid imminent unconstitutionality, be exercised by the institutions of the European Union in such a way that on the level of the Member States, tasks of sufficient weight as to their extent as well as their substance remain which legally and practically are the precondition of a living democracy.” (3gg, my emphasis)

Finally, on the last point – in the field of criminal civil matters,  external trade relations, defence, and social concerns:

- Due to the fact that democratic self-determination is affected in an especially sensitive manner by provisions of criminal law and law of criminal procedure, the corresponding foundations of competence in the Treaties must be interpreted strictly – on no account extensively -, and their use requires particular justification.

- The use of the dynamic blanket authorisation pursuant to Article 83.1(3) TFEU to extend the list of particularly serious crimes with a cross-border dimension “on the basis of developments in crime” is factually tantamount to an extension of the competences of the European Union and is therefore subject to the requirement of the enactment of a specific statute.

- In the area of judicial cooperation in criminal matters, particular requirements must additionally be placed on the provisions which accord a Member State special rights in the legislative procedure (Article 82.3, Article 83.3 TFEU: so-called emergency brake procedure). From the perspective of German constitutional law, the necessary measure of democratic legitimisation via the national parliaments can only be safeguarded by the German representative in the Council exercising the Member State’s rights set out in Article 82.3 and Article 83.3 TFEU only on the instruction of the Bundestag and, to the extent that this is required by the provisions on legislation, of the Bundesrat.

- Parliamentary approval will still be required for deployment of German forces

* German does have a word for ‘constitution’ (Verfassung), but the term ‘Basic Law’ was chosen in 1948 as this document was not envisaged to be particularly permanent, pending reunification with eastern Germany, or what was to become the German Democratic Republic. (I think, anyway.)

02:13 (Edward) The UK picture in summary: Great night for fans of fascism. Great night for UKIP.  Fairly good night for the conservatives – though more from Labour’s downfall rather than their gains.  Average night for Lib Dems. Terrible night for Labour. Bad night for Gordon Brown. 16% of the vote might be enough for Labour rebels to take on the Prime Minister. Or it might not.

Europe picture in summary: Socialists can’t use near-depressions to their advantage. Centre-right parties can – at least in the big countries of Europe. Italians are mental. Berlusconi is scandal-proof. Sarkozy is happy. The Netherlands needs to lose its love affair with the xenophobic Geert Wilders.  That is all.

02:11 (Edward) The North-West just elected the leader of the racist British National Party, Nick Griffin, to the European Parliament. He’s celebrating right now in Manchester Town Hall. I was so convinced this would not happen. Jesus. As a Mancunian, I would like to apologise to rest of the country. The blame, however, should not go to Manchester itself. It should go to the town of Burnley. Which, clearly, is full of racists. Also to Labour, who helped this to happen. Although that shouldn’t deflect from the fact that if you vote for the BNP, you’re a racist. There really shouldn’t be any debate about that. And you probably live in Burnley.

This result shouldn’t, however, make anyone defy democratic systems in order to halt the spread of the BNP. How do you defeat the BNP? You let them speak, as much as possible. Then you speak against them. Finally, as Polly Toynbee is noting now on the BBC, this should really make the Conservatives think twice before joining a bloc in Europe – the EUN I talked about earlier – which is full of people like the BNP.

1:48 (Edward) Here’s a real theme from tonight: Across Europe, centre-right parties that are in government in some of Europe’s heavy hitters – Germany, France, Italy, Poland – did well,  while socialist opposition floundered. This means that the centre right grouping in the European Parliament, the EPP, has done extremely well and will remain the largest bloc. The Socialists have done poorly, and not offered a real challenge to the EPP.

What’s curious is that the big centre-right parties in government, which should have suffered – not just for being in charge at a time of terrible economic recession, but for being pro-free market, anti-regulation and thus being partly responsible for the crisis itself – haven’t suffered at all. This might be because they have impressed the electorates of Europe with their sudden U-turn in favour of regulation of the financial markets. Or it might be because everyone in mainland Europe feels that the economic crisis was a result of Anglo-Saxon banking follies alone.

In The Usual Suspects, Kevin Spacey informed us that the greatest trick the devil ever pulled was convincing the world he didn’t exist. Well, tonight it looks like the greatest trick the centre-right in Europe ever played was convincing the electorate it wasn’t their fault.

1.17: (Edward) Via twitter, good quote from EU blogger Nosemonkey, r.e. the BNP:

funny how the BNP preach racial purity when they all look like piggly eyed, saggy jawed troglodytes isn’t it?

00:58 (Edward) Good point from Mark B there, but this begs the question which is more important – complete proportionality, or a local connection? Would a national top up of MPs – Lucas’ suggestion – be better? Or even worse? Also, should concerns about the BNP  affect the implementation of a fair electoral system? A battle of principle versus pragmatism there…

00:57 (Bailey) Of course Ed, if you went with Caroline Lucas’ idea and ditched the regional tie, then the BNP would end up with a sizeable bloc (more than the Greens?).  As she pointed out, you’d also lose the constituent link.

In other news, Le Monde has described Labour’s fate as “la débâcle” – a word normally reserved for France’s annihilation by Germany in the Franco-Prussian War.  Great historical parallels, then.

00:47 (Edward) Caroline Lucas, head of the UK Green Party, made the excellent point just now on the BBC that the reason the Green party probably won’t get any more MEPs despite getting a much larger share of the vote is that, even though the UK’s European elections use a system of proportional representation – which normally benefits smaller parties – the fact that this is regionally based means that it’s hard for the Greens to make gains – since in some areas the vote has to be shared out between as little as three MEP slots. The case, therefore, is very strong for a system where the entire country is treated as one region. If this makes no sense, then have a read tomorrow of my upcoming post  on proportional representation.

00:37 (Edward) Following on from Geert Wilders success below, some more on the success of far right parties in Europe: In Austria, eurosceptic and far-right movements made significant gains, winning collectively more than a third of votes cast for the European Parliament. Anti-immigration parties also did well in Denmark and Italy. However, such gains were partly offset by heavy losses suffered by the eurosceptic party in Poland. Now, many of these nationalist, often fascist parties are members of a party in the European Parliament called the “union for Europe of Nations”, or UEN. The UEN happens to be the party that the UK’s Conservatives are leaving the EPP to join. Why they want to leave no one really understands. Soemthing to do with federalism. And pleasing their base. What tonight’s results prove once again is that, despite a few successes by nationalist parties, there still aren’t many options for new recruits to join the UEN. At least ones that aren’t openly fascist. Will the Conservatives rethink their bizarre decision?

0:24 (Edward) Here’s something to think about: It looks like the party that comes second tonight in the UK european elections may well be a party (UKIP) who wants Britian to pull out of Europe and tries to further this aim by getting their members elected to the European Parliament. Okay…

0:20 (Edward) Projected vote for Labour overall is now 16%, behind the UK Independence Party (UKIP). Nothing short of disastrous.

00:08(Edward): Over in the Netherlands, the far-right, anti-muslim Freedom Party has become the second largest Dutch party in the European Parliament. It’s headed by Geert Widlers, who, you may remember, was banned from entering the UK to show his vicioulsy anit-Islamic film “Fitna”. Dangerous times in Holland…

00:00 (Edward) Interesting pattern emerging in the UK: Labour’s vote share crashing, but the Conservative’s vote share not really changing – lots of Labour’s vote going to parties like UKIP and smaller parties (and, of course, the BNP). Still, the result in Wales – The Conservatives topping the vote for the first time since, er, around 1918 – is nothing short of amazing. Devastating for Labour.

23:46 (Edward) Nick Griffin, head of the BNP, just defended his party’s  white-only membership policies by noting that it allowed them to stop their members being sacked by their employers, thanks to the Race Relations Act. To which, as a law graduate, I say haha, I think not. Idiot.

23:33 (Edward): Obviously it’s a tragedy that the BNP have been elected to Europe, but as Nick Robinson just pointed out, their vote total actually went down; but due to the effect of postal voting in Yorkshire, their vote share went up. Or something.

23:28 (Edward): In the UK, Yorkshire and Humberside have just sent a member of the racist British National Party to the European Parliament, for the first time ever. A British fascist will now sit in Strasbourg. The BNP received 11%, only 2 behind Labour. Well done, Yorkshire!

23:25 (Edward): Has the BNP won a seat in Leeds? Will I have to eat my words from earlier?

23:13 (Edward) From the Press Association’s Europe editor, (hat/tip Guardian blog)

Only 43% bothered to go to the polls, according to official European parliament figures, continuing a consistent decline in interest since the first direct elections for MEPs 30 years ago.
In 1979, nearly 62% of voters in the then nine EU countries voted – at a time when Euro-MPs had virtually no powers.
Now, when MEPs have significant influence over EU legislation – recently delivering cut-price mobile phone charges which appealed to millions of people – recognition of the role of MEPs is actually falling.
The turn-out is another dent in European parliament standing, and a reflection of the European Union’s perceived lack of impact on citizens.

Ah, apathy…

23:03 (Mark Bailey): Looks like constitutional expert Richard Corbett’s lost his seat in Yorkshire.  Really big loss for Europe.

23:00  Edward- Focusing on the UK, things are not doing well for the government. Labour are rumoured to be running at around 16/17% in the vote, which would be an absolutely disastrous result. Meanwhile in Wales the Conservatives are apparently running ahead in the popular vote; if that held up then it would be the first
time since 1931 that the Tories won the popular vote in Wales. Which would clearly be amazing. Finally, in Scotland the provisional results look, again, terrible for Labour – only three points ahead of the Tories at 20% . UK Chancellor Alistair Darling would lose his seat if they held up in the General election…

22:44 (Mark) The big question: will EPP/ED get a majority? Also Eric Pickles: what??

22:33 (Edward) Two good blogs to follow, where you can get raw data to compliment the random observations here: the BBC’s blog & the Guardian’s blog.

22:32 (Edward) Early exit polls in Italy show that Silvio Berlusconi’s People of Freedom party will win around 40% of the vote. Are Italians insane? Yes, I think they may be. The Berlusconi madness continues unabated…

22:27 (Edward) Related point: How rubbish are European socialists if they can’t do well from the GREATEST FAILURE OF CAPITALISM SINCE THE GREAT DEPRESSION? Pretty rubbish, I suspect…

22:20 (Edward) Mark Mardell on the BBC makes the point that the reason socialist parties are doing badly across Europe while the centre-right ones have done okay is because the socialists are in dissaray, and more to the point the centre-right rulers of France, Germany etc have made a strong stance in favour of regulating the financial sector. This makes sense – after all Nicolas Sarkozy made a big pro-regulation stance at the G20 summit in April.

22:10 (Edward) Tony Barber on his EU blog over at the Financial Times thinks that the results tonight will show a drubbing for the ruling domestic parties of Europe as a result of anger over the economic crisis . Maybe, but that’s not happened in France and Germany, where the ruling parties have done quite well.

22.03 (Edward) In France, Nicolas Sarkozy’s centre-right UMP party have done very well. Socialists, not so much. This sounds more like a failure of Socialist leadership than anything else, (leader Martin Aubry will be facing some tough questions) though I can’t help feeling that centre-left parties in opposition across Europe should have made more of, you know, the complete failure of centre-right free trade philosophy that led to the economic crisis. At any rate, Sarko will be sleeping well tonight.

21:52 (Edward) – Lots of overhyping on the BBC – and online – of the possibility that the racist British National Party have a chance of winning a  seat in the European Parliament. The BNP’s best chance is in Manchester. Will the BNP win a European seat in Manchester? No, they won’t. We’re not all racists here, you know.

21:37 (Edward) - From the results across Europe so far, the main centre-right party of Europe, the EPP, seem to be doing well, while the main centre-left party, the Socialists, have seen some pretty disappointing results. While this might seem pretty weird – what with the economic crisis showing the complete failure of the kind of deregulated market policies the EPP have supported – it may simply be a reflection of the fact that voters have gone to the polls and judged their domestic parties, not the European ones they belong to. It’s not  just Britiains who use Europe as a way to send a message to their government…

21:25 (MARK) – On BBC News, William Hague says he is not certain that the new conservative UEN grouping will gain enough seats to qualify as a Group in the European Parliament. In response to the suggestion that Law and Justice are unfortunate bedfellows, he suggests unconvincingly that politics are different in Poland…

Gathering at Bethnal Green police station

I went to the demonstration for justice for Ian Tomlinson, as I mentioned in this post yesterday. I just felt like, you know, I had to do something. And I guessed in that sense it would be rather more cathartic – for my own benefit, to set my mind at rest – than because I thought it would actually achieve anything in particular.

The statement by the family at Bethnal Green police station, the start of the march, really was very moving, and I’m glad I took part. We needed to make a statement.

However, I think I was right on the second part – the demonstration measured (I guess) 500-600 people at most. Thankfully it got a fairly good (brief) report on the BBC News website.

But on the first part, I was wrong. It didn’t lead to a sense of catharsis for me, just a sense of hopelessness, as the demo was hijacked by various people trying to push their respective political agendas. In this case it was largely the SWP who plastered their logo and website across their banners stating “Who killed Ian Tomlinson?”. There were plenty of others there hawking their Socialist Workers and various other hard left newspapers, and several large banners were on the march for the Union of Servicemen (?), the Socialist Workers and the Stop The War Coalition.

Using this event – a solemn march to demand justice for a man who had died – to push any sort of other agenda just seems to me to be incredibly tasteless.

Marching towards Bank

This wasn’t about “the system”, or about capitalism. It was about a man who died, at least partly due to police tactics. How is that partisan? How could anyone think it appropriate to make it exclusive to their political creed?

Perhaps I am just expecting too precise a message than is possible in a group of several hundred people, and perhaps this protest was extraordinary. But it at least made me reconsider the final paragraph of this comment I wrote on Ed’s G20 post. Do protests work? (Obviously, they do sometimes.)

I’m now watching Persepolis, a really brilliant film – the original French version – apparently the English version isn’t as good (Marjane really can’t sing though.). In the Iranian Revolution, protests against the Shah’s pretty awful regime, only partly down to religious concerns, were hijacked and used to justify wholehearted support for the new theocracy.

Obviously the parallels aren’t direct (er, at all), but it’s an interesting contrast, perhaps.

Maybe I’ll feel better about it all tomorrow.

(Penny Red has another report from a different perspective and highlights an incident I had forgotten)

Nine days have now passed since the death of Ian Tomlinson, and in that time, one thing has become very clear: he did not simply die of ‘natural causes’, as the police at the time suggested. In fact, his death was a very unnatural one indeed – and the police are directly responsible.

It’s easy to get very angry about this sort of thing and descend into hyperbole. But two things have become clear:

1) Police tactics are at fault

The police tactic of ‘kettling’ is unnecessary, counter-productive, and unacceptable. Last year the House of Lords ruled that the practice of ‘kettling’, deployed in the May Day protests of 2001 (where thousands of protesters were held for SEVEN HOURS at Oxford Circus) was compatible with the ECHR Article 5(1), as “the sole purpose of the cordon was to maintain public order, that it was proportionate to that need and that those within the cordon were not deprived of their freedom of movement arbitrarily”.

Let’s hope this senseless policy gets overturned at the European Court of Human Rights. When 3000 people are held in an area of less than 2000 square metres for 7 hours, until 21:30, with no food, water, or sanitary provisions, how can that possibly be justified?

Similarly, with the G20 protests, how can it be justified to hold people for such a long period of time, and only allow them to leave if they agree to provide their details and be photographed?

And how can the police get away with smacking people on the head with truncheons, cordoning off and then baton-charging peaceful climate camp demonstrators (who hours earlier had been pitching tents, playing music, and selling flapjack) and setting dogs on people who had been posing no threat at all?

If there’s one video you watch today – assuming you’ve watched the videos of the police beating Ian Tomlinson (1, 2)- watch this one. Riot police march in to beat unarmed, peaceful protesters, with their hands in the air. Then watch this one from the film Goodbye Lenin, which depicts the Stasi’s tactics of violently breaking up demonstrations. That there is any resemblance between the two at all is appalling.

How can these things not be seen as a deterrent to future protest, and a breach of Article 5?

2) The policeman responsible for Ian Tomlinson’s death should go to prison – and for a long time. But he’s not the only one.

I’m afraid, not for the first time, that I am going to have to disagree with the charming commentator on this (very good) Daily Mail article (via) who said:

“Ian Tomlinson, drunk and out for trouble, decided to deliberately walk into a riot situation and blatantly obstruct the police. He was pushed out of the way. He died because he was a chronic alcoholic and was likely on his last legs anyway. The police did nothing wrong and, compared to other European countries, acted in a very restrained manner. This whole media frenzy is pathetic, transparent and more to the point, very boring. Nobody cared about this man when he was alive, not the media, not the readers of this column and certainly not his family, so let’s have less of the crocodile tears and public lamenting now he’s dead. If people want to criticise the police then do so, but don’t assume everyone is of such low intelligence that putting a bit of spin about a story of a drunk having a heart attack will prompt any right-thinking person into outrage and anarchy.”

- Dom, UK, 10/4/2009 10:40

Ian Tomlinson wasn’t doing anything wrong. He was a bystander, making his way home from selling newspapers. The video clearly shows him shuffling away from the police with his hands in his pockets.

But even if he was doing something wrong, that is obviously no excuse for smacking him in the legs and violently throwing him to the ground. The policeman actually lunged at his back. The only threat to public order was from that policeman himself.

As others have pointed out, this particular piece of brutality which led to Ian Tomlinson’s death was not exceptional; there were countless examples of this on the day. So yes, this stupid thug should go to prison, and for a very long time, both for what he did and to set an example to others thinking of going the same way. But this goes much higher than that.

The Met is not only responsible for the police tactics, it’s also responsible for the disgraceful way that it responded to Ian Tomlinson’s death, briefing that it was “of natural causes” and that demonstrators threw bricks, bottles, etc. while police were trying to save his life. And the media’s responsible for unquestioningly lapping it up. It’s since “emerged” that he was an alcoholic Milwall fan staying in a bail hostel. Oh, well that’s ok then.

So what’s going to happen now?

Well it’s clear that IPCC inquiry is not going to be sufficient. As the Guardian’s editorial on Thursday noted,

“And what kind of independent body is it whose first reaction to the Guardian’s evidence on Tuesday night was to call at our offices (accompanied by a City of London policeman) and ask for it to be taken off the website?”

Surprise! The CCTV cameras “weren’t working”. Sorry, that must have come as a shock. And from that Channel 4 News interview, the chairman of the IPCC is clearly an idiot.

We need a full judicial inquiry, and the only way we’re going to get that is if sufficient pressure is placed on those who can make it happen. Protests might not help much, but it’s better than nothing.

Join the protest against police brutality, tomorrow (Saturday 11th April) at 11:30, at Bethnal Green police station.

I want to have confidence in my police service again. I want to trust them, and to believe that they’re there to protect me. How can I do that when nine days ago, a man died at their hands, and they don’t seem all that bothered?

Some more coverage:

• Liberal Conspiracy: Who’s to blame for this accidental death?
• Liberal Conspiracy: So who will excuse police brutality now? (includes lots of other links)
• Liberal Conspiracy: I still blame police brutality (2nd April)
• Chicken Yoghurt: Ian Tomlinson: video reveals G20 police assault on man who died
• Bloggerheads – Why aren’t these people working to protect us?
• Laurie Penny – Fuck.
  

Oslo Fjord

I know what you’re thinking. In the midst of all this talk of an economic crisis, the G20 and accompanying protests and police brutality, and Brown’s recent trip to the US (for which he received a DVD box set, not even the correct region – poor Gordon), we’ve lost sight of our priorities. The crucial question that everyone’s dying to have answered is this: how’s Norway getting on?

The answer, Norway  fans, is not too shabby. The country is faring a lot better than many other European countries, particularly thanks to its oil wealth. Unemployment, traditionally very low, is still only 3.5%.The base rate is still at 2.5%, far higher than the UK and the Eurozone, where central bank lending rates are at 0.5%. This is not to say, however, that Norway hasn’t been impacted by the credit crunch: that base rate is still 325 basis points lower than October 2008, and the value of the Norwegian government’s domestic $12bn pension fund (supported by oil wealth) fell 25% in 2008, although the far larger “Global Pension Fund”, at some NOK 2.12 trillion (about £200mn), may well be more resilient. They must be pretty pleased they reduced the proportion of that pension fund held in global stock markets in August last year from 60% to 50%…

Coffee, Scone and Jam

I visited Oslo in February, on a slightly impulsive Ryanair detour back from Verona (sorry environment!) Perhaps I’m generalising, as I didn’t go outside the capital, but Norway really is a fascinating place. I was only there for a day and a half, and Oslo is a fairly small city by UK standards, but that provided plenty of things of interest. There was always fresh snow on the ground and a top-notch coffee shop just around the corner – and just as well: Norwegians drink more coffee per head than anyone else in the world. This particular one, just behind the lightly-guarded royal palace, served freshly brewed ethical coffee and chunky scones with walnuts, accompanied with a large glass of jam and copious amounts of butter for about £3.50, a bargain in Norway. Unfortunately it was such a bargain, and so warm inside thanks to the log fire, that I had two, which rather reduced the cost-effectiveness… The newspaper was interesting, too; I couldn’t understand a great deal of it (obviously) but at least the first four pages of a fairly small newspaper were devoted to commentary and opinion.

There are two things which are almost universally known about Scandinavia: it’s pretty cold (in winter at least) and pretty expensive, particularly alcohol. Both of these facts held true while I was there. Thanks to my inappropriate choice of clothes and having flown in from balmy northern Italy, I was especially affected by the former, and my advice (although it should be pretty obvious) would be: hats, gloves, shoes and thermal underwear. It was actually so cold that the buttons on my phone stopped working.

Norway from the train

As for cost – yeah, it is expensive. I chose to get the £45 train rather than the £30 coach from the Sandefjord/Torp Airport (typically Ryanair, labelled as Oslo, but actually 1½-2 hours away). However, due to a sudden snow fall, the train wasn’t running so we had to get a rail replacement bus. Regular travellers of UK railways will be well acquainted with the rail replacement bus, but despite the more extreme weather in Norway it’s pretty unusual there, and a lot more comfortable – a double-decker luxury coach with bags of space. This meant that it took slightly longer to get into the city, but it also meant that my ticket didn’t get stamped – so I cunningly got a refund from the station the next day. I also managed to wangle a student ticket on the way back using my Union card which doesn’t have an expiry date, so the whole £45 journey cost me about £16! Hurrah! My hostel then cost about £25 for the night (including sheets and a towel – lots of Norwegian hostels tack on an extra £5 for this privilege). This turned out to be slightly more expensive, however, as bizarrely someone stole my dirty clothes.

Slottet (Oslo's Royal Palace). You can walk right up to it; it's in the middle of a park. There aren't even bars on the windows.

On the rail replacement coach from the airport I also started talking to two incredibly friendly girls – well, they started talking to me, I obviously had a pretty confused look on my face. It turned out they were both in the Baha’i faith, and they proceeded to explain what that meant (basically: let’s all just chill out and be nice to each other, yeah?). They’d flown in from Frankfurt where they’d been at a Baha’i conference. Only one of them was actually Norwegian, the other was a Texan studying international health, I think – it turns out it’s sickeningly cheap to study in Norway: £30 a semester, for a Masters. What an awesome country. The conversation turned to how one of them had received a pretty grumpy and unsympathetic reception from a customer services assistant at the train station in Oslo – the American girl suggested it was because it was a socialist country, and so people felt it was the government’s responsibility to take care of people, rather than every individual to one another. (So does government replace community, or is it in an expression or community? Or perhaps it was just a single anecdote which didn’t actually mean anything)

Downtown Oslo

Beer is certainly pricey in Norway, a 300ml bottle in a bar in the trendy Grünerløkka neighbourhood cost me about £4.50. It was pretty busy for 2230 on a cold Monday night. While I was in that café I asked a middle-aged (it turned out, retired) woman why it was so expensive? I mean, everything seems more expensive in Norway (they’ve got a 25% sales tax) but particularly alcohol. She answered the question as if it wasn’t that big a deal, and said that it was probably partly due to the difficulty of transporting things to such a remote place. While this is true, it’s only half the answer, and the other part comes down to that scourge of pub landlords across northern Europe: excise duty. Norway has some of the highest rates of taxation on alcohol in the world, at €200 per hl3, more than double that of Ireland and the UK, and its neighbours Sweden and Finland. According to this guy, that makes a bottle of Absolut Vodka €37, €31 of which is pure tax. There are probably a number of reasons for this: the necessity of having high rates of productivity, especially in the postwar environment; strong protestant morality; and combating drunkenness and alcoholism. The latter is really difficult to avoid in a country like Norway which has very hard and psychologically challenging winters, and it seems as though the UK is to a certain extent following down the same path of trying to regulate alcohol consumption via price rationing. But as Ed pointed out in a post on this blog not too long ago, this seems to be a really poor way of going about it. The real problem comes not from a quiet drink in a sociable, supervised and regulated environment like a pub. It actually comes from buying cheap, strong alcohol in supermarkets and (to a lesser extent) off-licenses, and then drinking it in the street or your own home. Surely a better way of going about it would be to lower alcohol taxation in pubs, which in the UK are seriously feeling the strain at the moment, and commensurately increasing the taxation in off-licenses. (How about this interesting fact: almost half of all alcohol consumed in Norway is consumed by just 10% of the population.)

Storting (Norwegian Parliament). Opens around 9ish, closes when business is done. The Monday I was there, that was before 1300.

In the current economic recession, Norway’s not faring too badly, partly thanks to the fact that it is blessed with substantial quantities of oil and a relatively enlightened, forward-thinking political class. While Britain sold off its stake in North Sea oil long ago and spent its revenues as soon as they entered the Treasury’s coffers, Norway set up an oil fund in the early 1990s to provide pensions for the elderly and help ease the transition after oil revenues peaked. That fund has now reached some $200 million, and although it has been hit by the global downturn, as only 50% of it has been placed in relatively safe (and highly ethical) investments, it’s not doing too badly. Additionally, its banks have been less exposed to the risky loans and dodgy financial instruments which have wreaked such havoc in the UK and elsewhere. This is likely as a result of more conservative business instincts in the country, but it also stems from a unique 1961 law which states that any commercial bank with assets over £10 million has to have a quarter of its board members appointed by the government, and a responsibility to operate their business not just in a sound economic way, but also with regard to their social impact. On first impressions this seems quite radical, but it isn’t really: when banks have such a large responsibility for citizens’ savings, those citizens should play a part in the operation of the banks. It’s not that dissimilar from the mutual model which has proven to be relatively resistant to the shocks imposed by the current economic turmoil.

9th and 10th Century Viking Swords, in the History Museum. Norway is famed for its child-friendly museums

Nevertheless, like any country, Norway is no paradise; problems do exist. The retired woman I met in the scones and coffee café behind the royal palace used to work in the public healthcare sector, and said that there were increasing problems there, particularly surrounding the cost of treatment. In Norway there is a fixed fee that you have to pay each time that you go to the doctor. This may seem sensible, but it’s actually a really ineffective way of reducing unnecessary treatment, as well as being tremendously inefficient for the healthcare system as a whole; people put off going to see their GP for 10 minutes and instead only go to the A&E room when it becomes much more urgent – and, of course, much more expensive. A similar system is used in the UK with prescription charges, which bring in some £450 million, a figure that is set to significantly decrease following Gordon Brown’s October announcements on abolishing prescription charges for cancer sufferers, and those with “Long-Term Conditions”, a list which is almost impossible to define and ends up being almost entirely arbitrary.

Another problem, particularly in Oslo, is the cost of living which is amongst the highest in the world. That OAP in that café (it would have been much easier if I knew her name…) said that even with her relatively good pension from the healthcare system and the additional pension from the oil fund, she wasn’t left with a great deal of disposable income after paying her rent.

Nobel Peace Centre - Prizewinners Field

To a large extent, these are problems that most other countries face. Aside from that, Norway is a fairly unique place. It has a liberal political system with a strong belief that it owes a considerable debt to the world – and not because it’s ashamed of any imperial past; after all, it has none to speak of (unless you go back to the Vikings…). Rather, the debt appears to be quite simply because they’ve been fortunate and others haven’t. Accordingly, Norway gives 0.95% of its GNI annually in overseas development assistance, and plays host to a range of humanitarian, human rights, and peace-building organisations, including most notably the Nobel Peace Prize. They’re rather proud of this one in particular, in fact, and have an excessively interactive museum to show it off, including this fibre-optic field of prizewinners; the screens light up and jump around when you walk near them. (Actually, quite a few of them don’t – but nice try, Norway.) My student ID which worked so smoothly on the train back to the airport later that day hit a rough patch at the Nobel Peace Centre, as the man behind the desk correctly noticed that there was no expiry date – he asked if I had any other ID and I showed him a book I had, which seemed to work OK! As part of the museum was closed for refurbishment, I also got in at half price, so what should have cost £8 actually cost £2.50, another bargain!

So at the end of my brief stint in Norway, the view I came to was this: pretty cold, quite expensive (unless you have student ID), but fascinating, friendly, and really well worth a visit – probably more than a day and a half, next time! I’d need to read more into the Scandinavian model before I give it my sign of approval, and the level of alcohol taxation seems a bit excessive, but any country which serves such high quality coffee and has such friendly, liberal people seems like it’s on the right track.

photo credit: Mossaiq

They are two perennial problems facing the European Union: a lack of a clear, coherent vision for the future of European integration and a lack of any real leader to implement this vision. Answering “who is the head of the European Union?” is far more complicated than it should be. The President of the Commission? The head of the largest party in Parliament (joking)? Or perhaps the head of the European Council – the leader of the state which happens to hold the rotating EU Presidency?

This problem has suddenly got that much more difficult to answer, as yesterday the Czech government, the current holder of the Presidency, lost a vote of no confidence. How can you lose power in your country but retain it over a much wider area, the EU? According to EurActiv, the Czech Prime Minister Mirek Topolánek said “At the moment, this situation has no effect on the role of the president of the European Council,” in a statement issued by the Czech Presidency.

Three things support the Czech Republic’s retention of the Presidency. First of all, the post is actualy held by the rather outspoken President Václav Klaus. And secondly, as EurActiv also points out, “Governments of EU countries have collapsed while they were holding the Union’s reigns twice before – in 1993 in Denmark and in 1996 in Italy.” It continues, however, by pointing out that it has never happened in an economic crisis before – and this is no small crisis.

It is worth considering the extent to which these events led to Topolánek’s outspoken attacks on Obama’s stimulus package in the European Parliament today. Indeed, as the BBC reported:

He attacked the US’s growing budget deficit and the “Buy America” campaign, saying “all of these steps, these combinations and permanency is the way to hell”.

Maybe something was lost in translation – but that’s pretty strong stuff.

The third thing that really supports Klaus’ position is the fact that, because the President doesn’t really do all that much (as has been repeatedly demonstrated in the past), nobody really cares. Yes, the President of the Council theoretically has power to significantly drive the agenda, but it doesn’t really make that much difference (compared to the status quo) if he doesn’t. One area in which Klaus may be seen to have affected the agenda is through his country’s refusal to ratify the Lisbon Treaty – but even this may be seen more through the prism of domestic politics than a deliberately obstructionist policy as President of the Council. My point is – yes, he’s put something of a break on further integration, but there’s no reason to suspect that this wouldn’t have happened if hadn’t been in this European role.

Nevertheless, it’s certainly not a great situation: the government of the country that holds the Presidency of the European Union has just collapsed, significantly (it seems) due to the way they’ve handled the economy. Which makes these problems that much more difficult to handle at a European level, when, despite the weak institutional powers, strong leadership could have a significant positive effect.

The Presidency will be held by the Czech Republic until a mere three weeks before European Parliament elections. It’s not a great advertisement for why people should care about – or engage with – the EU.

Update: Mark Mardell thinks it could have a bigger effect, particularly on ratification of the Lisbon Treaty, and sensitve negotiations over the Working Time Directive. Maybe this could indeed be Sarkozy’s moment to come to the rescue.. but don’t hold your breath

photo credit: sunface13

So you may have noticed that my attempted liveblogging/twittering (tweeting?) from the Convention on Modern Liberty was not particularly successful, mostly because I just spent the time watching the debates, but also because I got a bit confused with twitter. All very complicated, this Interweb – it’s not a truck you just dump stuff on, it’s a series of tubes, you know.

The convention on the whole was pretty good. I had some preconceptions that it might be a bit worthy (or just outright smug) but in the end it was really interesting. Nothing particularly new but it brought together a lot of things in a more coherent way.

The aim of the convention was to spark debate and draw attention to the erosion of civil liberties in the UK after the last ten years.

A few things were worth noting (below the fold).

1. “If I hear someone using the term citizen again I am going to self combust”

This point was raised in the first Plenary after Shami Chakrabarti’s speech (and her unsuccessful call and response of “hell no”, I think this rhetorical device always sounds a bit weird and can have the unfortunate effect of turning thoughtful conventions into zombified rallies).

To begin with I thought that it was going to be a boring pedantic point, but it was actually quite interesting. As the woman (who used to work for the excellent Unlock Democracy) went on to say, “The state does not belong to me. It belongs to this strange construct called the Crown in Parliament. We need a new constitutional settlement”. In fact Republic had a stall and were a partner at the convention, and they argue (among other things) that the abolition of the monarchy and the creation of an elected head of state would help to enhance and protect civil liberties. Although I agree with their general aim (and stuff like this only helps to reinforce that view), and that our various aborted constitutional reforms have had the effect of concentrating power in the Prime Minister rather than simply removing it from the monarch, I’m not sure how secure the general claim is. This might just be because I haven’t thought much about it so let me know in the comments!

2. Rights need to be entrenched

There was some pushback, particularly from Conservatives at the conference, on a fairly general feeling that judicial review is the only way to ensure that laws comply with constitutionally-codified fundamental rights.

Incidentally, the very articulate Dominic Grieve, on the panel of the first plenary, was challenged on the Tories’ policy to abolish the Human Rights Act and their desire for “fewer rights, more wrongs” (whatever that means). He said that he wasn’t sure what it meant, which is understandable because it’s a pretty weird soundbite; alternatively his response was a semantic quibble to avoid the fact that his party has a far from perfect record with regards to civil liberties. (He had a good line: that Conservatives are just as prone to eroding human rights as anyone else, but that when they do so they get a voice in the back of their minds: your grandfather wouldn’t have approved). I realised half way through the afternoon that I was sitting next to him, we made eye contact and I like to think we rolled our eyes and scoffed in mutual understanding! I get the impression that he would like the Tories to make a much firmer commitment to fundamental freedoms than is the case at the moment.

Anyway – back to the substance of the point: although there’s quite a lot of debate even within the Conservative Party about this, they seem generally to be against giving “unelected judges” the power to strike down laws. Douglas Carswell MP, in the afternoon seminar I attended, argued that we should be increasing participation and devolution (all of which I agree with, if not his methods – referenda and direct democracy), rather than taking the power out of the hands of the people. But I don’t think this will really work, because aside from weakening governments through electoral reform (I had a good chat with ERS as well which helped to clear up STV vs AMS/AV+), protecting the rights of the minority from the tyranny (or parentalism) of the majority will always be a problem.

Douglas Carswell agreed with Weber’s view that judges, like all civil servants, are essentially self-interested individuals (see public choice theory) who have their own views and biases. But this concern doesn’t really seem to have stood up in reality; judges on constitutional courts have a pretty good record of doing the job they’re employed to do. Even the incredibly activist German Constitutional Court basically reflects underlying societal trends and protects human rights, and its strong activism is a reflection of the institutional framework initially established. Besides, Constitutional Court judges always face restrictions on their activity: public opinion, constitutional amendments (except – and it is a big except – the perpetual clauses of the German Basic Law, which frequently have a big impact), and the fact that, as Hamilton said, the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Plus, as Ely says, “the judges do not check the people, the Constitution does, which means the people are ultimately checking themselves” (he doesn’t agree with that, but I can’t remember a better quote, and that book’s well worth reading for an alternate perspective anyway).

On the other hand, with Ely (and Douglas Carswell today) are those who variously say that judicial review is inherently undemocratic, open to abuse, and as Noah Webster eloquently puts it, the “assumption of a right to control the opinions of future generations, and to legislate for those over whom we have as little authority as we have over a nation in Asia”. But I think this rather misses the point: democracy is not just free elections and the ability to do anything you want, as the winner in those elections. Democracy includes a whole host of other values and freedoms (speech, expression, trial, etc). Even Dahl’s (1971) famous minimalist procedural definition of democracy as competition open to participation requires these basic rights to function properly. (And others, such as Linz, very explicitly include these rights in their definitions.)

Greater participation and better, more independent and more principled MPs would both help the situation, but an entrenched bill of rights would make much more of an impact.

3. The Ends Justify the Means (always, and even if they’re totally unrelated)

The Labour Minister Michael Wills bravely attended the afternoon seminar on Protecting Rights, which I appreciated even if might not have appeared so at the time! It lended weight to some of this I was reading a couple of days ago (via), even if that might be a bit strong in places. The strange cognitive dissonance of the  Minister, who seemed to be led by an almost blind acceptance of any erosion of civil liberty if it could have some perceived marginal benefit, was amazing, although maybe not surprising. We were told variously that we were against increasing voter participation, solving the problems of housing estates, and most bizarre of all that we were against free school meals (at which point I wanted to conduct a quick poll of the room). All of these problems – and so many more! – could be solved through the government’s planned data sharing laws. In any case, that’s not what most people thought, and we are all well off (apparently), so who are we to talk about anything. When we disagreed in the Q&As, we were misquoting him, so he was going to put his remarks on his website.

4. More data please!

The bloggers forum at 1pm-2pm was interesting, but one of the best points made was that a more proactive release of accessible, comparable data would be highly beneficial to the democratic process. The Power of Information Taskforce Report looks promising on that front, but I guess we’ll have to wait and see.

5. What next?

This was probably the biggest thing for me that the conference didn’t seem to strongly address, although perhaps there will be some good follow-up stuff and it should hopefully spark some debate anyway. In the opening plenary, one of the panelists voiced their support for a questionnaire (of the sort often used by civil society groups in the US) to be sent to all MPs, with a list of clear unambiguous questions, and then hold them to account before and after the election. I think this is an excellent idea, but it can’t really be done by existing human rights organisations like Amnesty and HRW, as they have to be nice to MPs in order to persuade them. Would it actually be that difficult to set up outside of existing structures?

Oh yeah, and Will Hutton got told off by Helena Kennedy (he was making weird generalisations about Muslims). Philip Pullman on the other hand was great! Watch it here (2nd plenary)

Despite the large support from excellent groups like MySociety there unfortunately isn’t any wifi here so i won’t be able to provide too much during the day.

Update: I got a bit bored / frustrated at Twitter and in a knee-jerk reaction deleted my account. sorry! (there’s an aftermath post here).