6, October, 2017
Brexit is based on an advisory referendum on a bizarre question, not one that legally requires UK government action. Because it was so bizarre in failing to repair the ‘democratic deficit‘ of Brussels, many who supported remaining inside European democratic institutions did not vote!
Triply Bizarre. The Lisbon Treaty is identical with the Constitutional Treaty that was rejected by the French and Dutch referendums. Other countries, including UK, were not allowed to have a referendum!
What on earth is going on with ‘European Democracy‘?? Are the ‘Brexit negotiations’ being conducted in the democratic interest of the European people?
In August 2017, I wrote to the European Commission requesting under the Freedom of Information Regulation the release of all papers on Brexit. The public is being spoon-fed minute amounts of information about what is being negotiated between the European Commission and the UK Government. They are not being told WHY!
It is extremely serious for everyone’s future. The style of these so-called negotiations precludes the public from understanding the main issues. Are they about trade, red tape or democratic control of a bloated, neo-Gaullist bureaucracy? Justice is far more important. The European Commission was originally called the Honest Broker of Europe. Now it calls itself the political Commission.
These negotiations hide the major issues about the lack of real democracy in Brussels and the distorted democracy that rules in the UK under the slogan, Brexit at any price.
My request for Brexit information was totally refused by the Commission. Under the Freedom of Information Regulation 1049/2001 I am able to request a review by the Commission (!) of their decision to refuse information.
The refusal gave three reasons. 1. the Commission has created a “tailor-made process of transparency” which it is applying. 2. Objections relative to the secrecy of negotiations and 3. to matters of economic and financial sensitivity.
This is my reply letter.
To the Deputy Chief Brexit Negotiator,
Dear Ms Weyand,
Many thanks for your letter of 13 September 2017 in reply to my request for all documents and working papers of the UK Brexit talks and discussions.
In accordance with Regulation 1049/2001, I am hereby asking for a review of the grounds that you give for refusing any and all papers other than position papers and agendas etc already released. I am also asking for all documents that are being currently generated as the talks proceed as a continuous process.
A. ‘Tailor made transparency’ is another term for cover-up
- Censorship by definition. In your reply you first state that the European Commission has adopted a “tailor-made approach to transparency.” (your bold text) That is precisely the point to which I and many others object. It is not logically or legally possible to have maximum transparency and then withhold documents by a self-serving restriction. Tailor-making restrictions by and for Commission officials must censor and hide documents from the legal principals.
- Against interests of free citizens. This procedure is in direct violation to the democratic principles of the Community Method, freedom of information for free citizens, as enunciated by Robert Schuman and the Founding Fathers.
- Not authorized by principals. Who are the legal principals? Let me put it simply in the terms that the European Commission, Council and Parliament have used many times, that of a divorce. In a marital divorce, the man and the woman are free to choose their lawyers to represent their interests on the settlement in a Court before an impartial judge. A divorce case involves rights, children, property and responsibilities.
If the lawyers were corrupt and wanted to ban the man and woman from their discussions, that would clearly be unfair, not to say, illegal. If the lawyers wanted to come to a division of goods and property, sort out rights etc without a judge being present, that too would be both unjust and illegal. It would not stand up an instance once it was brought before an appeal Court. If the lawyers were more interested in what they could gain in an operation to the detriment and financial loss of the divorcing couple, that would be a dereliction of duty. It would be farcical theatre. For the couple it would involve robbery of their human rights, money and interests.
- Denies pre-talk discovery. Robbery of facts and smothering of interests are precisely what the EU institutions and the UK government are undertaking at the moment. A tailor-made approach to transparency by biased and unauthorized officials is an instrument in illegality and cover-up. It denies discovery and analysis by the legal principals. Many areas need legal investigation before Brexit talks start and can be solidly structured.
- Citizens’ rights are not negotiable. The couple seeking the divorce are the British and European publics. More than 500 million people are being divorced, according to the Article 50 process. It is their interests, property and rights that are at stake. Article 50 gives no authorization for secret negotiations or the censorship of documents by the Commission’s so-called ‘tailor-made approach.’ This latter method is unjust as it blocks and silences normal civil procedure. As indicated below, the public have a number of pre-negotiation (pre-trial) issues that must be clarified, before any result can be legally binding.
- Only open debate and open documents are acceptable. The present set-up is unacceptable and all papers must be released.
B. The EU and the UK government are not the real negotiating partners.
- No authority has been cited to construct a ‘tailor-made’ system to censor and restrict information. The information belongs to the people.
Brexit concerns more than 500 million citizens. It does not just PRIMARILY involve the European Commission (acting for the institutions) and the Government of the United Kingdom. Both these parties have their own partisan positions which do not necessarily, and in practice, coincide with the interests of the citizens.
- The EU institutions do not have full public confidence or trust.
For example the European Union must be concerned with its institutional interests and its practice. Much of these interests are subject to public criticism on grounds of unauthorized secrecy and the “democratic deficit”. The institutions have lost public trust continually in the way the Commission is chosen, contrary to Community law and original customary practice. The result? The turnout of the public in European Parliamentary elections has declined continuously since the post-Maastricht elections. The rise of what the Commission calls ‘nationalist’ or ‘popularist’ movements and parties indicate that the institutions are in crisis. It has lowest ratings since the early days of the European Community.
- The UK Government, for reasons discussed below, lacks public support.
Article 50 requires that the UK fulfill all its ‘constitutional requirements’ before Brexit. This requires ensuring the rights of national regions, regional parliaments, minorities, and many other issues including the transitory arrangements for some 14,000 legal instruments by democratic means and overall economic stability. The conduct of the Referendum debate, the status of Euratom which was not mentioned in the debate, and the viability of referendums in law, are just some of the issues still raising constitutional questions. For these I would direct you to my book: Brexit and the British Vision for Europe, ISBN 9781326780869.
- Both the so-called ‘negotiating parties’ are prejudiced against their clients, the public.
4.a The EU institutions.
The European Commission, the European Council and the Council of Ministers and the European Parliament are prejudiced and antagonistic to the UK’s remaining a member of the EU.
This lack of impartiality can be demonstrated by many statements. It would be tiresome to list them all. For example, take their reaction to the Referendum itself. It was a consultative, non-binding referendum on the question of staying in or leaving the EU (not the European Community or Euratom).
The non-binding and consultative nature of the referendum were known in advance and publicized during the Referendum campaign. The non-binding nature was later confirmed – not only in the High Court of England and Wales but in the Supreme Court of the United Kingdom. You can find the judgements of these two Courts of Justice, together with the presentations of the parties, in my book: Brexit, Miller and Henry VIII. ISBN: 9781365727412. I would refer you to paragraph 105 to 108 on in the High Court judgement and paragraphs 116 on in the UK Supreme Court judgement.
It was with some shock among journalists that immediately after the first results from the 23 June 2016 Referendum, the presidents of the four EU institutions presented themselves at 10 am at the Commission Press Room to pronounce. They issued a joint statement. It said UK must leave the EU “as soon as possible, however painful that process may be.” http://www.consilium.europa.eu/en/press/press-releases/2016/06/24-joint-statement-uk-referendum/
Yet 63 percent of British electors had either not voted or voted to remain. The UK Government had no authority to proceed immediately. Nor had the EU institutions any right to react so negatively or absolutely to an unclear outcome. Mr Cameron had resigned his office at 8.15 that morning! Whom were the four officials addressing? He said the UK needed ‘fresh leadership’ to deal with the non-binding referendum outcome involving a small majority, splitting the country in half and posing constitutional problems. https://www.theguardian.com/politics/2016/jun/24/david-cameron-resigns-after-uk-votes-to-leave-european-union
To add insult to illegality the four EU presidents in their 10 am statement insisted on a quick Brexit, regardless of the uncertain UK governmental situation and nearly a year before any Article 50 letter was received: ‘We have rules to deal with this in an orderly way.’ In fact the status of Article 50 in this regard is anything but clear.
A second example of many would be the SpitzenKandidat system. This non-treaty device was used to elect Mr Juncker – when the democratically elected British Prime Minister David Cameron had said ‘Mr Juncker is ‘the wrong man’ for the job. Who was Mr Juncker elected by? Just 382 politician/electors of 800 of the EPP. No ballot in all the EU had Mr Juncker’s name on it. No Commission ballot existed.
The treaties say that the Commission must be impartial and hence a partisan politician is automatically ruled out by law.
A further indication of prejudice is the fact that Mr Juncker’s telephone calls could be seen as an important factor in the resignation of Mr Cameron, an elected Prime Minister. His remarks that preceded the statement of the four presidents were addressed to a country with no effective government.
4b. UK Government is a prejudicial party too.
When Mr Cameron resigned, the Conservative Party had to choose a new leader. This was not done until the autumn. Then Mrs Theresa May called a General Election. She ended up with a minority of votes in the House of Common. She hoped to be sustained by the votes of another party, the DUP of Northern Ireland. Conclusion? The public did not support her policy.
It was Mrs May who used the Conservative Party’s earlier majority to authorize her to write the Article 50 letter to Brussels. However her authority to do so was undermined by the later General Election. Critics say that her hard Brexit policy is a means only to hold the Conservative party together, and pro-Brexit faction within it, are a minority within a minority.
One of many other examples of lack of impartiality that could be cited is the UK Government’s attitude to UK citizens living on the Continent. They were not allowed to vote in the Referendum although their vital interests were involved. There is no guarantee that the present Government will act rigorously to assure these British citizens get a fair deal.
Another, even more serious indicator of undemocratic activity is that the UK governments, since the time of the Maastricht Treaty 1992 to Lisbon, have refused to organize confirmatory referendums to assure treaties’ legality. Thus the Lisbon Treaty has not been confirmed as the acting treaty by referendum. Then they acted one-sidedly and in a prejudicial, partisan way on the advisory referendum of 23 June 2016 to withdraw without reference to Parliament or public debate. Two Courts ruled against them.
The citizens of the UK and EU-27 are the primary parties in the dispute. They have right for the full disclosure of any and all documents involved in the Article 50 or Brexit process.
- Both of the so-called negotiating parties, EU institutions and UK government, have lost public confidence in their impartiality. They do not have public trust.
- Both parties have shown themselves prejudicial against public interests.
- Both parties ignore calls for fairness.
- No meaningful negotiation can take place for the public by parties who are not trusted by the public and who refuse to submit all working documents to the public.
- The concept of censoring by a ‘tailor-made’, unauthorized committee of unnamed officials is untenable in any democracy.
- Who is the ‘tailor’?
- Who decides the pattern or framework for censorship?
- Who is able to make the cuts?
- Who is involved in stitching up a ‘package deal’ behind closed doors?
- Is the pattern they are using one that suits these bodies only and does not involve substantive public issues, such as:
- Why the Commission ignored previous referendums that were unfavorable to it,
- Why the Lisbon Treaty is identical with the Constitutional Treaty which was rejected by referendums,
- Why and how was the Lisbon Treaty and its Article 50, after being rejected by the Irish in a Referendum, mysteriously deemed legal with no public discussion?
- What is the status of nuclear proliferation security under Euratom? Euratom has its article 208 which forbids exit for these very reasons.
A ‘tailor-made’ deal is for the public nothing more than a cover-up.
The public is PRIMARILY the main party in the dispute – called a divorce. They have the Primary Right to the documents about what is being discussed either for their enhanced rights in the Community system or against those existing rights to minimize or reduce them. The public and all concerned citizens have the right to have the information about the talks, either directly by video link or have all the working documents plus the position papers.
The two other parties, the EU institutions and the UK government, may not like this. They might wish to carve up in private mutually acceptable positions to the prejudice of the public. They may wish to tailor the information flow to make this easier for them to manage the information and control the PR. That is not the point. They have no right or legal authority to do so.
The public rights include safeguarding their right to information against any closed door corruption.
This transparency issue goes far beyond the stipulations of the treaties which say that all matters must be treated as openly as possible. The EU institutions must understand that ‘open’ in this case means open to video cameras and public analysis.
The issue goes beyond all the treaties because it is about the right of free people to have free information about their destiny and how others who call themselves representatives are manipulating information to the detriment of elementary rights of Freedom.
C. Riposte to other exception clauses
- Article 4.3 of Regulation 1049/2001.
You write that the disclosure of working documents and internal minutes is prevented by the exception to the right of access laid down in Article 4(3) (protection of the decision-making process).
This reads: 4.3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.
The exception of Article 4.3 about this ‘negotiating process’ that you mention is null and void for the reasons detailed above and below. The subject of rights being curtailed in secret excludes its use. The first part of the talks is about ‘divorce’. It deals with the rights of citizens. Only after the divorce can trade matters be discussed.
A fundamental democratic right is to be informed. This is an absolute right. It is recognized by representative governments. Freedom to Information is not doled out by democratic governments, only autocracies. Government is obliged by the people to recognize their right to information. (Article 10 of the Convention of Human Rights, articles 8-11 of the EU Charter).
The so-called negotiating parties have no right to limit this information. Nor is it the function of the EU or government to decide how much information about changing citizen rights it will deign to release to the public. It is the public that judges the EU and the governments about whether they are remiss or not in their functions of civil servants.
Neither the EU Institutions nor the Government of the UK has the full and undivided support of the British or European public. They cannot act fully in its name.
It is therefore of major importance and overriding interest of the public to have all information being discussed. Otherwise the public will be faced with a negotiated fait accompli from two groups of officials that lack public confidence. They will therefore be faced with the option to take further legal action for the dereliction of duty of the two groups involved.
- Climate of public trust has already been lost
You say that the ‘negotiations on the UK’s withdrawal from the European Union requires a climate of mutual trust between both sides.’ But neither side has the full trust of the public. There is concern at what is NOT being discussed, excluded by mutual agreement of the EU and UK government against the public.
Whatever the outcome, trust has already been the first casualty. The public cannot properly judge the value of a pig in a poke. That is what in effect the ‘negotiations’ are between two parties that lack public trust. Citizens cannot see what is supposedly being done in their name, and without their acquiescence.
3. The three areas require openness, not secrecy.
The three areas of the present discussion have been defined without public intervention. But as they stand they are all matters that require openness: rights of residence and social security, the Irish single market and travel area and the accountancy of the amounts the UK will pay to settle up its bills and commitments.
The latter is purely an accountancy problem based on legal obligations. The money involved is tax-payers’ money. The final figures and the discussion should be without dispute by anyone, as much as a tax bill of an individual or a company should be fixed and settled by accountancy principles. There is therefore no reason to apply Article 4.3 to any of the main areas defined for the divorce discussions.
There are a number of other areas such as Euratom, JET and generally governance issues that cannot be restricted by article 4.3. They are issues were the legislation has to be continued beyond Brexit. Public ventilation of the issues is to the advantage of all. It will avoid a slew of Court cases if the ‘negotiators’ get it wrong.
- Objections under Article 4.1
You say that ‘disclosure of documents is ‘prevented by … Article 4 (1)(a), fourth indent (protection of the financial, monetary or economic policy of the Union or a Member State) and Article 4(1) (b) (protection of the privacy and the integrity of the individuals).’
This article reads:
4.1. The institutions shall refuse access to a document where
disclosure would undermine the protection of:
(a) the public interest as regards:
— public security,
— defence and military matters,
— international relations,
— the financial, monetary or economic policy of the
Community or a Member State;
(b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.
The same counter-arguments apply to dismiss the claim. None of these restrictions apply to universal rights and privileges of UK citizens and EU-27 citizens. They do not involve individuals whose data has to be protected. The money involved is tax-payers’ money. That alone removes the requirement of secrecy.
The request is about the divorce proceedings not the negotiations afterwards about a new commercial partnership and a new trading relationship. The subjects being discussed at the moment are:
- Residential and social rights of EU-27 citizens in the UK and UK citizens in EU27.
- Irish border, single market problems,
- Financial payments.
There are several other issues of equal or greater importance that the negotiating parties have refused to deal with. That underlines the dangers for the citizens of leaving the EU and the UK government the sole right to define what the issues for the citizens really are. So far the experiment has failed. The dangers for the citizen and future democratic standards both for the UK and the EU have been increased.
The objection raised is trying to confound the two phases. The first phase must have open discussion and open paper work.
A tailor-made restriction on documents is by definition a cover-up. I urgently demand that a review of the Commission’s policy be made. All documents relevant to Brexit must be released and negotiations held in a way that satisfies open democracy, worthy of European democratic institutions.
David H PriceDavid Heilbron Price