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As a successful and consequently extremely wealthy lawyer, I am often asked, “Sir
Hugh, in your expert and consequently very expensive opinion, can EU constitutions
be damaging to democracy’s health?”
Now, this is clearly a thorny question. The answer is not as simple as saying, “There’s
nothing to worry about. I make vast fees from people being afraid of legislation who
need me to protect their rights for them. As such, my health is looked after privately,
and if I am healthy, then so is your democracy. Trust me, I’m a lawyer.” No, this
question requires careful examination and hours of research charged at the usual
rate. But people are perhaps right to be concerned.
In some countries in this wonderful melting pot of conflicting legal systems we call the
European ‘Union’, the advice was that we should all take the ‘Constitution’ as it was
then called, simply swallow it whole, and wait for the pain to go away. Or get worse.
Or something. Some argued that only one dose would be required, others said that
repeat doses might be necessary. But that is by the by. The ‘expert’ advice, if we
may call it that, was that the Constitution was good for what ails all Europe, and all
Europe should accept this pill without question. Other countries’ ‘experts’ took the
view that the Con-stitution, as they wittily named it, was too bitter a pill to be
swallowed, and was best left untouched – at least, until someone else had tried
swallowing the pill first, and we had all seen for ourselves what were the unpleasant
side effects. Then, if there were none, we could all safely have a bite. And then there
were those brave few lands where because of a belief in democracy, or the temporary
existence of a populist opportunity to score a few polling points, the people were
promised that they would be treated like adults, and allowed to choose for
themselves.
Sadly, as with most beautiful dreams, the idea of allowing the people to choose
turned out badly. For the manufacturers of this European panacea - shadowy
technocrats based in Brussels - choosing not to take the Constitution was never
meant to be an option. I mean, when did you last hear of patients being consulted on
whether or not they should take their medicine? That way madness lies, I can tell you.
(A lot of my friends are very successful doctors, and they have told me, on the
twelfth hole, I think it was…)
So those clever boffins in Brussels hit upon a rather marvellous idea – rejigging the
order of the component parts, and changing a few words here and there, so that the
ingredients on the label looked different. And then they set about marketing what
appeared to be the same product under different packaging, and the new brand of
‘Treaty’.
The genius of this marketing strategy was immediately apparent. Suddenly, everyone
seemed much happier to swallow whatever Brussels had given them. Countries where
a referendum had been promised could now rest easy, safe in the knowledge that
what was being prescribed was good for them, and they had no need to question it.
Hey, presto, the need for tiresome and meddlesome public consultations of people
crazy enough to think that the technocrats might not know best was gone. Apart
from in a few awkward countries where there is apparently some silly legal obligation
to poll the people before accepting such a script, that is. Which is taking the idea of
democracy a bit far, if you ask me. Which I seem to remember you did. So there.
Yet isn’t it also a form of madness to allow a group of self-regulating professionals to
operate a form of closed shop, to set themselves up as knowing what is good and
right for all members of society just on the basis of having passed a few exams, and
the continued use of arcane and obscure language that only those on the inside can
decipher? What’s that? Like lawyers and doctors, you say? Well, I mean, apart from
them, obviously. You couldn’t very well expect normal people to have sufficient
interest to make their own well-informed decisions about legal and medical matters
that affect them directly. They would need to read about cases, history and the like,
and see how those relate to their own circumstance. It would involve them making
critical decisions based on reason. You can see the problems. It takes years of
specialist training to look up symptoms or the particulars of a case on Google.
Thus I resolved to discover whether the Constitution and the Treaty were in fact one
and the same, and if so, attempt to answer why one would require a referendum
where the other does not. But I am, as I believe I have mentioned, an extremely
senior and successful lawyer, who therefore doesn’t do his own Googling, and
occasionally talks about himself in the third person. Like that. (I am assured that
‘googling’ is a word, although my ‘software’, as I am assured it is called, doesn’t
appear to recognise it. It suggests ‘goggling’, which is something quite different.) So
I asked a junior member of chambers to do the work for me. Here is what he said:
Hugh, in your expert and consequently very expensive opinion, can EU constitutions
be damaging to democracy’s health?”
Now, this is clearly a thorny question. The answer is not as simple as saying, “There’s
nothing to worry about. I make vast fees from people being afraid of legislation who
need me to protect their rights for them. As such, my health is looked after privately,
and if I am healthy, then so is your democracy. Trust me, I’m a lawyer.” No, this
question requires careful examination and hours of research charged at the usual
rate. But people are perhaps right to be concerned.
In some countries in this wonderful melting pot of conflicting legal systems we call the
European ‘Union’, the advice was that we should all take the ‘Constitution’ as it was
then called, simply swallow it whole, and wait for the pain to go away. Or get worse.
Or something. Some argued that only one dose would be required, others said that
repeat doses might be necessary. But that is by the by. The ‘expert’ advice, if we
may call it that, was that the Constitution was good for what ails all Europe, and all
Europe should accept this pill without question. Other countries’ ‘experts’ took the
view that the Con-stitution, as they wittily named it, was too bitter a pill to be
swallowed, and was best left untouched – at least, until someone else had tried
swallowing the pill first, and we had all seen for ourselves what were the unpleasant
side effects. Then, if there were none, we could all safely have a bite. And then there
were those brave few lands where because of a belief in democracy, or the temporary
existence of a populist opportunity to score a few polling points, the people were
promised that they would be treated like adults, and allowed to choose for
themselves.
Sadly, as with most beautiful dreams, the idea of allowing the people to choose
turned out badly. For the manufacturers of this European panacea - shadowy
technocrats based in Brussels - choosing not to take the Constitution was never
meant to be an option. I mean, when did you last hear of patients being consulted on
whether or not they should take their medicine? That way madness lies, I can tell you.
(A lot of my friends are very successful doctors, and they have told me, on the
twelfth hole, I think it was…)
So those clever boffins in Brussels hit upon a rather marvellous idea – rejigging the
order of the component parts, and changing a few words here and there, so that the
ingredients on the label looked different. And then they set about marketing what
appeared to be the same product under different packaging, and the new brand of
‘Treaty’.
The genius of this marketing strategy was immediately apparent. Suddenly, everyone
seemed much happier to swallow whatever Brussels had given them. Countries where
a referendum had been promised could now rest easy, safe in the knowledge that
what was being prescribed was good for them, and they had no need to question it.
Hey, presto, the need for tiresome and meddlesome public consultations of people
crazy enough to think that the technocrats might not know best was gone. Apart
from in a few awkward countries where there is apparently some silly legal obligation
to poll the people before accepting such a script, that is. Which is taking the idea of
democracy a bit far, if you ask me. Which I seem to remember you did. So there.
Yet isn’t it also a form of madness to allow a group of self-regulating professionals to
operate a form of closed shop, to set themselves up as knowing what is good and
right for all members of society just on the basis of having passed a few exams, and
the continued use of arcane and obscure language that only those on the inside can
decipher? What’s that? Like lawyers and doctors, you say? Well, I mean, apart from
them, obviously. You couldn’t very well expect normal people to have sufficient
interest to make their own well-informed decisions about legal and medical matters
that affect them directly. They would need to read about cases, history and the like,
and see how those relate to their own circumstance. It would involve them making
critical decisions based on reason. You can see the problems. It takes years of
specialist training to look up symptoms or the particulars of a case on Google.
Thus I resolved to discover whether the Constitution and the Treaty were in fact one
and the same, and if so, attempt to answer why one would require a referendum
where the other does not. But I am, as I believe I have mentioned, an extremely
senior and successful lawyer, who therefore doesn’t do his own Googling, and
occasionally talks about himself in the third person. Like that. (I am assured that
‘googling’ is a word, although my ‘software’, as I am assured it is called, doesn’t
appear to recognise it. It suggests ‘goggling’, which is something quite different.) So
I asked a junior member of chambers to do the work for me. Here is what he said:
“Erm… the EU… the Constitution… hasn’t that been scrapped? Oh,
yes, that’s right, it’s a treaty now. But they’re different, aren’t
they?”
yes, that’s right, it’s a treaty now. But they’re different, aren’t
they?”
“’Is the Treaty as presented essentially the same as the dumped
Constitution? And if so, should Britain have had a referendum?’
[He didn’t say the quotation marks; I put those in, so that you
would know he was repeating my questions to him.] Erm…
probably, yes. That is, if that’s the answer you want. Or no. It
could also be no. I could argue on the one hand that the broad
philosophical aim of each document is quintessentially the same,
and that therefore the minor textual changes or of little import;
on the other hand, I would be happy to make representations to
the fact that, whilst the differences between the two documents
may appear superficially cosmetic to the untutored eye, in reality
the significance of the semantic changes cannot be overlooked.
Either way, I don’t really mind. It’s up to you. That’ll be £400.00
[plus VAT]. Where should I send the invoice?”
Constitution? And if so, should Britain have had a referendum?’
[He didn’t say the quotation marks; I put those in, so that you
would know he was repeating my questions to him.] Erm…
probably, yes. That is, if that’s the answer you want. Or no. It
could also be no. I could argue on the one hand that the broad
philosophical aim of each document is quintessentially the same,
and that therefore the minor textual changes or of little import;
on the other hand, I would be happy to make representations to
the fact that, whilst the differences between the two documents
may appear superficially cosmetic to the untutored eye, in reality
the significance of the semantic changes cannot be overlooked.
Either way, I don’t really mind. It’s up to you. That’ll be £400.00
[plus VAT]. Where should I send the invoice?”
Still, that’s lawyers for you.
In the end, we must come, finally, inevitably, indeed, inexorably, to a conclusion. I
speak to you now not as a lawyer, but as a human being, which, I am assured, is a
very different thing. I don’t know whether the documents are the same, how much
of individual countries’ independence of thought is being sold by their governments,
or whether there should have been a referendum. Neither do most of you. But we
should; we should all know about the things that affect us most fundamentally, if
not always directly. We should know whether we are being asked to swallow without
question something which we would not have taken in such a fashion before. If it is,
and we have been denied the referendum previously promised, we should bloody
well say something. But we shouldn’t rely on others – doctors, lawyers, politicians
or Brussels technocrats, to tell us what is good for us, and just accept it.
© lizardmagazine.com, 2007
In the end, we must come, finally, inevitably, indeed, inexorably, to a conclusion. I
speak to you now not as a lawyer, but as a human being, which, I am assured, is a
very different thing. I don’t know whether the documents are the same, how much
of individual countries’ independence of thought is being sold by their governments,
or whether there should have been a referendum. Neither do most of you. But we
should; we should all know about the things that affect us most fundamentally, if
not always directly. We should know whether we are being asked to swallow without
question something which we would not have taken in such a fashion before. If it is,
and we have been denied the referendum previously promised, we should bloody
well say something. But we shouldn’t rely on others – doctors, lawyers, politicians
or Brussels technocrats, to tell us what is good for us, and just accept it.
© lizardmagazine.com, 2007
A total bloody waste of time. So I asked a more senior colleague, who apparently
knows about these things. I certainly don’t Never cared for European law; made all
my money in libel cases. This is what he said:
knows about these things. I certainly don’t Never cared for European law; made all
my money in libel cases. This is what he said:
Sir Hugh Jafee, QC, lights your ire: EU Constitutions
by Sir Hugh Jafee, QC
Friday, November 9, 2007
Friday, November 9, 2007
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