EUROPEAN CONSTITUTION
Tom Paine, eighteenth century firebrand, revolutionary
and political philosopher: "A
Constitution is not the act of a government, but of a people constituting a
government … and government has no right to make itself a party in any debate
respecting the principles or modes of forming, or of changing,
constitutions"
GORDON
BROWN is doomed to inherit not a poisoned but an empty chalice,
drained of all power. When Tony Blair finally passes control of the Labour Party
to his Chancellor he will not be passing on control of
Britain
’s destiny. With the signing of the
new EU constitution, power will have moved from
Westminster
to
Brussels
. Mr Brown’s long fight to prevent
the Prime Minister from trading in the pound for the euro will have failed, as
will his efforts to keep
Britain
’s successful economy from becoming
inextricably intertwined with that of the sclerotic EU. Thanks to Mr Blair, Mr
Brown will indeed find himself sitting at the top table in EU meetings. But it
will be well below the salt, where he will be banging his spoon against his
begging bowl for attention. He won’t get it.
France
and
Germany
together will have the power to
block any reforms the other 23 members propose. It does not take a legal expert
to understand these words: “The constitution, and law adopted by the
Union
’s institutions in exercising
competencies conferred upon it, shall have primacy over the law of the member
states.” But it does take a careful reader to notice two interesting points.
First, this is a constitution, not, as Mr Blair contends, merely a treaty that
“tidies up” earlier treaties. Second, the word “competencies” is
deliberately used in place of the word “powers” in an effort to minimise the
concerns of the constitution’s opponents. That sets the broad institutional
framework, the distribution of power that will prevail during a Brown
premiership. The specific frustrations Mr Brown will face will make matters
worse. The constitution confers on the EU the power to tax: “The
Union
shall provide itself with the means necessary to attain its objectives.”
At precisely the same time as Mr Brown will need to increase the flow of
revenues into the Treasury to finance his continued expansion of the public
sector, the EU will be tapping into the same revenue stream the pockets of
British taxpayers. Worse still, Mr Brown will have to sit helplessly by as his
cherished goal of preventing eurowide harmonisation of taxation moves from
merely improbable to clearly unattainable. The constitution says: “A
European law . . . shall lay down measures for the harmonisation of . . .
turnover taxes, excise duties and other forms of indirect taxation . . . ”
An EU official told me just last week that this certainly includes the
harmonisation of capital gains taxes, and if CGT are covered, corporate taxes
can easily be shoehorned into the definition of indirect taxes, especially if
the body wielding the shoehorn is the European Court. Meanwhile, Mr Blair will
have the last laugh on the question of the euro. Again, the constitution is
bravely unambiguous: “The activities of
the member states and the
Union
shall include . . . a single currency, the euro, and the definition and conduct of a single monetary
policy and exchange-rate policy . . . ” No messy referendum needed; no need to
meet a single economic test, much less five of them. The euro is in, the pound
is out. And Mr Brown ’s successful management of the
UK
economy will come to an end, as the
baton is passed to the folk who have brought double-digit unemployment and
stagnation to
Germany
, and periodic nationwide, union-led
shutdowns to
France
. To protect against the possibility
that Mr Brown’s powerful intellect will allow him to find some way to maintain
his control over the economic fate of
Britain
, Valéry Giscard d’Estaing and his
fellow draftsmen have made sure to close all escape hatches: “Each member
state shall ensure that its national
legislation, including the statutes of its central bank, is compatible with the
constitution and . . . European regulations (and) . . . decisions.” The
targets that Mr Brown determined for the Bank of England will be replaced by
those of the European Central Bank, and the Old Lady of Threadneedle Street will
finally be able to lay down the burden of trying to find an interest rate that,
when combined with the Chancellor’s fiscal policy, will keep the British
economy inflation-free and growing. Mr Brown is too clever not to realise all of
this. But he has a dilemma: should he oppose the new constitution, and lose the
support of Mr Blair for his move to No 10, or support the constitution, actively
or passively, and inherit an address and an office stripped of the power he has
always coveted? To complete this nightmare, imagine that Peter Mandelson’s
benefactor grants his wish, and installs the twice-fallen minister as
Britain
’s man in
Brussels
, with more power under the new
constitution than Mr Brown can muster. (Irwin Stelzer, The Times
April 13, 2004
)
The
German security services said yesterday that more
letter bombs are probably on their way to senior EU figures. In an internal
document reported by German daily Die Welt, the German security services say
that a "series of pre-prepared letters" is to be feared. The German
police added that "further letter bombs are already in the postal system or
have recently been given to the postal service". Especially high vigilance
will have to be maintained at the beginning of next week when the European
Parliament holds its session in
Strasbourg
,
due to a backlog of unopened letters possibly containing bombs. Further details
have also emerged about the group suspected of carrying out the bombing
campaign. The anarchist group "Federazione Anarchica Informale" (FAI)
is believed to be behind the bombing and is estimated by Italian officials to
have about 350 members. The group is said
to be waging its campaign against EU "exploiters" and is passionately
opposed to the establishment of a European Constitution, according to Die
Welt.
The President of the European Commission, Romano Prodi - who
received a letter bomb in late December - was targeted as "the
representative of ... a repressive new European order". (EUobserver.com
8/1/04
)
http://euobs.com/?aid=14035&rk=1
Article
59, the so-called "Exit clause",
contains an intolerable
violation of the very foundation-stone of our own constitution and
of our democracy itself: it seeks to constrain the right of unilateral withdrawal
by imposing a two-year waiting period on
the withdrawalist state. This
imposition would mean that the Parliament that passes an Act of ratification
of this provision is seeking to bind future Parliaments. Will
it succeed in so binding them? Well
the first question here is whether those who will make up the next Parliament
will allow themselves to be mesmerised into letting themselves be
so bound? Or will they robustly
declare, on taking office, that in
Britain
the British
constitution is supreme and always has been, and that this pretence
that a so-called EU constitution can over-ride the will of the British
Parliament is a load of old cobblers to be treated with the contempt
it deserves; and they will then pass an Act repealing the EU constitution
and all its works, *with immediate effect*. The
point is not academic. For another little-noticed clause in article 59 provides
that not only shall a withdrawalist state not be allowed to withdraw
of its own volition for two years after announcing its intention, but
during those two years it shall be excluded from decisions and deliberations
concerning it, all the while remaining subject to the supremacy
of EU law. In a word, that state
will be reduced to the condition of a
colony. Consequently, during
those two years the EU could a) strip it of all moveable
assets, plundering it as the Wehrmacht plundered occupied
Europe
sixty
years ago, and b) pass laws so restrictive of the political and indeed
physical liberties of the inhabitants of that state as to "persuade"
its government to change its mind, and to drop the request to withdraw.
So the BIG question which MUST be
answered, and answered NOW, and first and
foremost by the TORY PARTY, is, after, say, the Constitution has been ratified,
signed, sealed and delivered, by the Blair government, WILL THEY CONSIDER
THE UK TO BE BOUND BY THE TERMS OF ARTICLE 59 IN CASE WE SHOULD WISH
TO WITHDRAW? (E-mail form TDE 15 Dec 2003)
IGC
delegate Abdel Aziz al-Hakim, who leads the Supreme Council for Islamic
Revolution in Iraq (SCIRI), said, "The French people and government have
always been and are today at the side of the Iraqi people.
France
has been one of the first countries
to insist on the transfer of authority as quickly as possible to the
Iraqis." He then went on to say the magic words: "When
Iraq
has recovered its sovereignty, the
country will be able to conclude its own contracts and the market will be free
and open. If French businesses put forward the best offers, then they will have
every chance. We want a free and open economy." Since
France
isn't going to be paid anyway,
Paris
might as well accept the inevitable and wait for the transfer of sovereignty.
Moscow also seemed to shift its position simultaneously, indicating coordination
between France and Russia.
France
's realignment on
Iraq
was nothing compared to the
bombshell French leaders dropped in
Europe
. Having been blocked by
Spain
and
Poland
in its aspirations -- shared with
Germany
-- for a European constitution,
Paris
leveled two threats against the rest
of
Europe
. The first was that there might be
economic consequences for those who thwarted approval of the EU constitution.
The second was that
France
would create its own coalition of the willing -- generating a constitutional
bond with those members of the EU who wanted it, and leaving others behind.
This would fragment
Europe
into four parts: non-members of the
EU, EU members that do not belong to the Euro bloc, euro block countries that
are not part of the constitutional arrangements, and fully integrated Europeans.
Then this would be overlaid by NATO and non-NATO membership. One
would think that as in
Iraq
, this is a game of psychological
warfare. The notion and reality of
Europe
is already sufficiently complex and ambiguous not to need a new
tier of relationships and distinctions. French leaders, however, are quite
serious, we think. They are feeling extraordinarily uncomfortable in the world
that is being shaped by
U.S.
power, and they fully understand
that by itself,
France
cannot offer a counterweight. In the
end, the
United States
is more likely than not to prevail
in
Iraq
, increasing its power.
Paris
is forced to maneuver violently on
issues like Iraqi debt forgiveness -- something forced on
France
by its inherent weakness. With much
of
Europe
uneasy about a loss of sovereignty
to a multinational entity,
France
is being locked into a very
uncomfortable position. It cannot stop its small maneuvering until its grand
maneuver its completed. And that grand
maneuver -- European integration -- is an increasingly unlikely event. That
will mean continued accommodation with the United States.( STRATFOR'S INTELLIGENCE BRIEF
Dec. 16, 2003
)
While
the sudden collapse of the Constitution
talks in
Brussels
on Saturday (13
December) was very unexpected for most participants; French president Jacques
Chirac was perhaps not so surprised. Most
diplomats pointed to
France
as the crucial reason
for the breakdown of the talks. At
breakfast on Friday, Mr Chirac had already hinted that there would be no
agreement and that the summit would end mid Saturday, reports Der Standard.
Now, being able
to blame the breakdown on
Spain
and
Poland
may suit the French president as it gives him more room to
shape the future of
Europe
. Although
Paris
officially supported the German position on the proposed new
voting system (double majority voting), there were also fears that such a system
could, in the long run, limit French influence in
Europe
. With
the Nice Treaty,
after fierce negotiating by Mr Chirac both
France
and
Germany
have the same number of votes – 29 each – in the
law-making council of ministers. However,
a double majority voting system – as proposed in the draft Constitution –
would change this historical balance between
Germany
and
France
. The
double majority voting system would mean that a majority of member states
representing 60% of the population would be needed for any decisions to be
taken. With
82 million Germans against 60 million French, the two countries would no longer
be equal in the decision making process. With
the perspective of Turkish membership of the European Union, it would very much
be possible for a German-Turkish alliance some time in the future to set the
European agenda and block new decisions. "The
system proposed by the Convention
will permit
Germany
to dominate
Europe
. This would be followed by a growth in Turkish influence,
eventually surpassing that of
Germany
between 2015 and 2020," writes Philippe de Villiers,
French MEP and president of the Mouvement pour la
France
, in Le Figaro. French
and German leaders have for months been examining the idea of a "hard
core"
Europe
of countries willing to push EU integration forward if there
is no agreement on the Constitution.
France
has already long been hesitant about enlargement
of the EU to 25 member states, fearing a dilution of its own power and a swing
in the power axis toward eastern Europe. President
Chirac explained on Saturday, after the failure of the talks, that a
Europe
of 25 would be made up of countries with too varied levels
of development - especially democratic development. The
UK
and the more
intergovernmental-minded EU member states might soon find themselves faced with
two options: Accepting the European Constitution or living in a European Union
ruled by a core-club of countries. (EUOBSERVER
14/12/03
)
“Someone
said the best way to destroy the EU would be to let
Poland
in”. (E-MAIL I Francis
13/12/03
)
The present draft is
grandiose, imprecise and long. It is proscriptive
rather than enabling. It includes
law, instead of creating a framework
for law-making. It offers no effective checks and balances to control
the law-makers. Instead, it consolidates
power in a shadowy, self-perpetuating
political elite. And, since many
Europeans believe the State exists in its own right and the people
answer to it, the proposed constitution attempts to include everything,
and thereby implicitly forbids everything
else. Here in
Britain
, the opposite is true. We, the people, are
sovereign and our governments answer
to us. Here, everything is permitted, until we elect a
parliament that decides otherwise. And if we dislike a law, we elect others
to overturn it. The EU's proposed
constitution attempts to change all that. (Letter to The Times, A Mote
December 12, 2003
)
The
latest version, (proposed EU Constitution)
released in advance of a tough bargaining
session in
Naples
this weekend, empowers the
EU to decide foreign policy by
qualified majority voting for the first time.
The dramatic change is tucked
away in Article III-201 on the role of the new EU foreign
minister. (EU Weekly News – C Mobray
30/11/03
)
Who
is doing what over the proposed EU Constitution
· HOLDING A REFERENDUM - seven countries Czech Republic,
Denmark
,
Ireland
,
Luxembourg
,
Netherlands
,
Portugal
, Spain · NOT HOLDING A REFERENDUM -
one country Germany · UNDECIDED, 17 countries
Austria
,
Belgium
,
Cyprus
,
Estonia
,
Finland
,
France
,
Greece
,
Hungary
,
Italy
,
Latvia
,
Lithuania
,
Malta
,
Poland
,
Slovakia
,
Slovenia
,
Sweden
, United Kingdom (EU Weekly News –
C Mobray
30/11/03
)
British
diplomats have appealed to
France
not to hold a referendum
on the new European constitution to avoid embarrassing Tony Blair.
One high-ranking British official has privately told senior French
diplomats that it would be "unhelpful" to Mr Blair if Jacques Chirac,
the French president, decided to go ahead with a poll in
France
. (EU Update
17/11/03
)
THOUSANDS of women could be banned from aborting
severely disabled babies as a result of a legal challenge by anti-abortion
groups using a little-noticed
clause in the proposed European constitution. The
groups plan to use a passage that
prohibits countries from “eugenic practices” to get a legal ban on the
screening of babies for genetic deformities or diseases. Each
year in
Britain
about 1,800 babies are aborted after genetic tests show them to have any
of 200 conditions, including Down’s syndrome, spina bifida and muscular
dystrophy. Pro-abortion groups
said that they would fight a ban on such genetic screening, declaring it
“deeply inhumane”. The
Government is committed to signing the European constitution, which would take
primacy over
United Kingdom
law, and insists that there is no need for a
referendum. The draft includes a new charter of fundamental rights, which has
been declared non-negotiable. It requires the “prohibition of eugenic
practices, particularly those aiming at the selection of persons”. Professor
Jack Scarisbrick, national director of the charity Life, said: “If we join the
constitution, we will definitely invoke it to procure an end to eugenic
abortions. Of course it is eugenics — it’s weeding out substandard members
of the human race to stop them being a drag on society.” The
pro-Life
Alliance
campaign group is seeking a formal legal opinion on getting a ban on ante-natal
genetic screening. Josephine Quintavalle, its
spokeswoman, said: “Eugenics is the underlying philosophy of pre-natal testing
in the
UK
. We will fight tooth and nail to get it stopped.” However,
pro-choice groups have said that they will campaign against a ban. Ann Furedi,
chief executive of the British Pregnancy Advisory Service, said: “I would be
extremely opposed to such a ban. It should be the decision of families, who
actually have to live with the situation. It is completely inappropriate to
categorise it as eugenics. Women are motivated by saying they can’t cope with
the situation, not that it is wrong for such people to be born.” Alastair
Kent, director of the Genetic Interest Group, representing families with genetic
diseases, said: “If it is interpreted that ante-natal testing were a eugenic
practice, it would penalise the small number of families that have children with
severe abnormalities. It would be deeply inhumane.” There
is no legal definition of “eugenics”, but medical practice accepts that
some elements of genetic screening — either to decide whether to implant an
embryo or to abort a foetus — are eugenic. Professor
Tom Baldwin, a member of the Nuffield Council on Bioethics and of the Human
Fertilisation and Embryology Authority, said: “It’s seriously worrying. A
court would have a hard time showing it is not eugenics — it is designed to
prevent the birth of a person with certain genetic characteristics.” The
charter on fundamental rights, which was written four years ago, goes
considerably further than the European Convention on Human Rights that the
Labour Government has already enshrined into
United Kingdom
law. The charter was originally intended to be a
political declaration of no legal consequence, but earlier this year was
included in the proposed constitution, giving it supremacy over
UK
law. It will be up to the European Court of
Justice in
Strasbourg
to decide whether
UK
law conforms with the charter. (The Times
October 29, 2003
)
President
Vaclav Klaus of the
Czech
Republic
has already chilled the mood by refusing to attend
today's ceremonial launch, and slamming the draft text as a blueprint for a
European super-state. "This is
crossing the Rubicon after which there will be no more sovereign states in
Europe
with fully fledged governments and parliaments which represent legitimate
interests of their citizens," he said. "Basic matters will be decided
by a remote federal government in
Brussels
,
and Czech citizens will be only a tiny particle whose voice and influence will
be almost zero." From
now until Christmas, ministers and diplomats meeting behind closed doors at the
granite Justus Lipsius building in
Brussels
will haggle over the draft, trading
minor concessions in the hallowed tradition of EU treaty talks. Then the real
trouble starts.
Denmark
,
Ireland
,
Luxembourg
,
Holland
, and
Portugal
are all committed to a referendum.
Spain
and
Italy
are expected to follow suit.
President Jacques Chirac has said there ought to be a vote in
France
, hoping that it will trigger bitter
divisions among his foes. The pressure is building up on the others.
Finland
rejected the idea at first, but is
now opening the door again. The Swedish
government is in a quandry, fearing a severe backlash if it attempts to
"smuggle" its Eurosceptic public into a constitutional union without a
vote. One of the sub-themes of the euro campaign was a deep disquiet about
the EU's military agenda, a neuralgic point after
Sweden
's 200-year history of unbroken
neutrality. It only takes one country to
block the constitution. A No vote in two or three would force
Brussels
to abandon the plan altogether. If the French rebelled it would be an earthquake, though it nearly
happened over the Maastricht Treaty, which passed by 50.5 per cent to 49.5 in
1992. A string of bitter clashes between
Paris
and
Brussels
over breaches of the euro zone
Stability Pact and illegal bail-outs for struggling French firms has revived
Gallic Euroscepticism. Pierre Mauroy, the former prime minister, said: "If
Chirac holds a referendum, there is a big chance that the French would vote no.
And that holds for the Socialist grass roots as well." For the French Left,
the EU is increasingly seen as the tool of "savage" Anglo-Saxon
capitalism. The Dutch, once model Europeans, can no longer be counted on either
in the new political landscape left by the firebrand populist Pim Fortuyn. The
biggest net contributor to the EU budget, the country is now in deep recession
yet is having to slash welfare spending to stick within the Stability Pact, even
as
France
cuts taxes and blithely tears up the
rules of the euro zone. Frits Bolkestein,
Holland
's European commissioner, says there
is open nostalgia for the "many hundreds of years of stability" of the
guilder. It is coupled with anger that "some countries in the euro zone
seem more equal than others". In
Denmark
, which rejected the euro three years
ago, support for the Giscard text is only 18 per cent. Jens-Peter Bonde, an MEP
and doyen of
Denmark
's Eurosceptic movement, said the
document was too deeply flawed to win acceptance in any Scandinanvian state.
"It is worse than a federal state," he said. "It is a unitary
state without any checks and balances. The Danish people will never accept
it." (Daily Telegraph
04/10/2003
)
The
Constitution will: * Force us to give up
our British veto in 30 additional areas (or more, depending how you count them).
* Reduce our voting weight to below 10% of the EU -- and, for the first time,
below
Germany
's. * Give control of asylum and immigration to
Brussels
, along with transport and energy * Require us to give
"active and unreserved support, in a spirit of loyalty" to the EU's
common foreign and defence policy. Defence sourcing will come under EU control.
* Give the EU a "legal personality", making it autonomous from
member-states, and opening the way for Brussels to take over Britain's permanent
seat on the UN Security Council * Create a permanent EU President (who will
out-rank the Queen) and an EU Foreign Minister * Give the EU a duty to harmonise
economies and social policies (the courts will use this point to over-rule any
tax opt-out that Tony Blair may get) * Make explicit the supremacy of EU law
over British law * Create an EU Justice Department and Public Prosecutor able to
undertake cross-border investigations (and backed by the EU Arrest Warrant) *
Enshrine the so-called Charter of Fundamental Rights, which includes clauses
that can be used to limit our rights, and to deny us free speech. Jack Straw and
Peter Hain say that it is "Just a tidying up of the treaties". But
Valery Giscard d'Estaing (who chaired the drafting committee) says it is "a
great leap forward for European integration", while Commission President
Romano Prodi concedes it is a "giant step". (MEP Roger Helmer's
electronic newsletter
10 September 2003
)
The
old incrementalism is still there - just as
almost all the other features of the previous treaties remain, incorporated into
this new constitutional text. So does that mean that the government ministers
are correct when they say that it changes virtually nothing and confines itself
to mere "tidying up"? That question could be answered in two different
ways. One would consist of listing all the significant additions that are to be found in this draft
constitution. These include such matters as granting the European Union new
powers over energy policy, power to "coordinate" national employment
policies, powers over immigration and asylum policy, and so on. The list is
a long one, and it includes important changes in the structure of the union, as
well as the creation of the new post of European foreign minister. But the other
way of answering that question is potentially more important, even though its
significance is much less obvious to the casual observer. The fundamental change here is the very fact that the powers of the
European Union, which were previously based on treaties, will now be based on a
"constitution". With this change, the EU crosses the Rubicon, from
something that could not legally be considered as a state to something that most
definitely can. Any organisation
based on treaties - Nato, for example - draws its authority from two things: the
will of the sovereign states that signed the treaty, and the principles of
international law under which treaties operate. This constitution, too, will
be brought into being by a treaty - but that will be a final, self-denying
treaty, one that will repeal the treaties of
Rome
, Maastricht and so on and that will ensure that the authority of the
EU will, from that moment onwards, no longer be treaty-based. "This
Constitution establishes the European Union," says Article I-1. In other
words, the authority of the EU will now
be located in its own governing document. Any disputes about that authority
will have to be dealt with not under international law, but by the EU's own
constitutional court - whose powers will themselves be derived from the EU's own
authority. Many federal constitutions have phrases stating or implying that the
powers of the provinces were somehow prior; that some powers have been passed to
the federal government; and that the rest remain with the provinces. But if
these claims are valid, their validity flows from, and depends on, the - federal
- constitution. That is why, when there is any
dispute about these matters, it is the federal supreme court that makes the
final decision. Higher authority resides, necessarily, at the federal level.
In many ways, this new European Constitution fits the model of existing federal
constitutions. The word "federal" was removed by the drafters for
cosmetic purposes, but the structure - which that word correctly described -
remained unchanged. Part I lists first the "exclusive" powers of the
EU (the federal government), and then the "shared" powers, where the
member states are allowed to act "to the extent that the
Union
has not exercised" its own power. This is directly
modelled on Chapter VII of the German constitution, which distinguishes
"exclusive" and "concurrent" powers, and allows the
provinces to make laws about the latter "to the extent that the Federation
does not use its legislative power". The list of "exclusive"
powers in the new EU Constitution is admittedly quite short; but many of the
powers usually exercised by federal governments are listed in the
"shared" category, and the
mechanisms are in place for the European federal authorities to take over as
much of them as they need. What is entirely lacking is a list of the
exclusive powers of national governments. In theory this is unnecessary, as they
retain all powers not otherwise listed. In practice it might be embarrassing to
compile such a list, as it would reveal how few items of significance were left
at the national level. But if this draft European Constitution is in some ways a
typical federal constitution, in other ways it
is one of the most disturbingly untypical constitutions ever written. The
purpose of any constitution is to set out the fundamental structure of authority
of the state - the powers of the parliament, government and judiciary, the basic
rules for elections and citizenship, and so on. A constitution is about legality
and political authority. It is not about the particular policies which a
government, once it was legally elected, might or might not wish to pursue. This
constitution, on the other hand, is
stuffed full of policy statements. The third of its four main sections is
actually entitled "The Policies and Functioning of the
Union
". These policies are mostly defined in terms of
"objectives", which range from the sublime ("peace" and
"social justice") to the ridiculous ("protecting the physical and
moral integrity of sportsmen and sportswomen"). They include full
employment; "high levels" of health protection and consumer
protection; "dialogue between management and labour"; reducing
disparities between the regions; raising the incomes of farmers; and, by the by,
eradicating poverty in the developing world. In addition, there is a lengthy
"Charter of Fundamental Rights", which contains a further wish-list of
policies (workers' consultation, the universal right to strike, and so on). Most
of these matters are the sort of thing which, in any democratic state, are left
to the politicians to deal with. Yet in
the new
Europe
, these policy
"objectives" will be constitutional imperatives;
the European Parliament will be able to
"request" that they be implemented; and, most crucially of all,
"the
Union
shall provide
itself with the means necessary to attain its objectives".
This European Constitution will be problematic, then, in a variety of ways.
Instead of the virtue of fixity, it offers a kind of institutionalised mission-creep. Its federal
structure also lacks stability, with a built-in mechanism for the one-way
transfer of powers. And its insistence on policy "objectives" both
diminishes normal democratic politics, and increases
the likelihood of ever-higher expenditure. Yet these are not the most
problematic things about it. The central problem is the sheer fact of its being
a constitution. For, in the political realm, only states have constitutions -
and the definition of a sovereign state is that its own constitution is not
subject to the authority of any higher constitution. Endowed with this new
constitution, the European Union will match that description. It will also have
its own "legal personality", with the ability to sign international
treaties in its own right; it will have its own president, foreign minister and
foreign policy, as well as its parliament, supreme court, flag, anthem and
currency. It will fit the criteria of a sovereign state. The member states,
whose constitutions will be subject to the authority of a higher constitution,
will not. (Daily
Telegraph 28 Jul 2003)
Ahead of the European Council summit in
Thessaloniki
later this week, the Conservatives have laid down 17 demands that they believe Tony Blair
should put to other EU leaders. First
principles of national sovereignty 1. The establishment of an EU Constitution, overriding national constitutions, must
be excised. 2. The European Union must not
be granted a single legal personality. 3. There should be no
permanent EU president. 4. There should be no
European foreign minister, especially one who initiates foreign policy and
could replace national representatives in the United Nations Security Council.
EU Powers and Laws 5. There must be no
"Escalator clauses" that allow the loss of national vetoes without
national parliamentary approval through Treaties. 6. There should be no
"flexibility clause" that allows the EU to extend its power in any
area mentioned in the new Treaty. 7. The
Charter of Fundamental Rights should have no legal standing in either EU or
domestic law. 8. There should be no
shared competences which would give the EU a carte blanche to take the lead
in law and policy making in areas like energy and transport. 9. National
parliaments must not only be able to warn against breaches of their rights
under subsidiarity and proportionality - they must
be able to enforce them. Home Affairs
Concerns 10. The prime minister must guarantee that he will preserve
intact British control over our criminal law, border control, and asylum system,
resisting moves to establish a common area of freedom, justice and security.
11.The prime minister must uphold control
of our criminal justice system and not let it be governed by
Europe
or assimilated to the European
system by the backdoor. 12. The prime minister must resist
the move towards control of our judicial practices from
Europe
. 13. The prime minister must not
allow our police forces and their practices to be governed by
Europe
. 14. To ensure that we keep control of our asylum and immigration policy, along with
control of our borders, the prime minister must secure an unbreakable opt-out
from Schengen as well as ensuring that we opt back out of
Dublin
2. The EU must not be allowed to decide our immigration and asylum policy. Defence
Concerns 15. There should be no
consolidation of defence and security issues into the new EU Constitution.
16. The primacy of NATO over EU defence
policy must be asserted at this summit and in any new Treaty. 17. The EU
should suspend its decision to take over the NATO peacekeeping mandate in
Bosnia
, until NATO has exercised
"right of first refusal". (
20-6-03
)
The
European Union's draft constitution
proposes radical reforms of the EU's institutions - more sweeping than those
in the Single European Act and the
Maastricht
and Nice Treaties combined. Many reforms have been debated but little attention
has been paid to the most critical: the reform of EU decision-making procedures.
This lack of scrutiny is astounding.
Decision-making rules are at the heart of any constitution. Most EU laws are
adopted by majority voting. These laws are binding in all member states -
including those that opposed them. Crafting such rules must be done with care.
Nations should assess their stake in decision-making, since this affects how
often they end up with laws they have opposed. Our research* demonstrates that the
constitution's rules would make it much easier to pass EU laws, improve the
EU's decision-making efficiency and would
shift a great deal of power to the four largest members:
Germany
,
France
,
Britain and
Italy
.
The consequences of transferring power to the larger countries is obvious. The
implications of improved efficiency are subtle but just as important, since the
constitution will transform the balance of power among EU institutions. The
increased decision-making efficiency stems from reform of majority voting in the
Council of Ministers. Instead of the Nice Treaty's complex system, the Council
would pass EU laws when half the members, representing at least 60 per cent of
the EU population, vote for it. This would make it easier to achieve a winning
majority in the Council. Under the Nice rules, only about 2 per cent of all
conceivable coalitions constitute a qualified majority. Under the Constitution's
rules, over a fifth of all coalitions will achieve that goal. Such a change primarily benefits the European Commission. It has a
monopoly right to propose legislation. This right - which
amounts to a "pre-veto" over legislative ideas that it dislikes -
gives the Commission influence over the shape of EU laws. On each law every
member in the Council has particular concerns. The law that passes does not have
to address all these concerns - only those of countries representing at least
half of the members and 60 per cent of the population. With so many ways to form
a winning coalition, the Commission will have more choice over which concerns it
pays attention to. One hopes that the Commission will act in the best interests
of
Europe
,
of course. But constitutions should be about power, not hope. Indeed, the extra
power makes it ever more important that the Commission is viewed as an honest
broker by all national governments. Limiting it to 15 members is a bad idea.
Since the Commission's own decision-making rule - simple majority - is highly
efficient, the constitution should allocate one voting Commissioner per country
but allow the Commission president to give portfolios only to the 15 most
capable. The European Parliament also
gains. The constitution would strengthen its power over EU legislation in
two ways. First, it would require parliamentary approval for most EU laws,
including many that are now decided only by the Council. Second, the greater
decision-making efficiency means legislation will be passed more quickly. In
contrast, the Council of Ministers loses.
It does not decide which proposals it
votes on - that is the Commission's job. Making it easier to find a winning
coalition reduces the Council's influence on what is passed. After all, when
many alternative winning coalitions are possible in the Council, the coalitions
can be played off against each other - either by the Commission with its
"pre-veto" power or by the parliament with its actual veto. The
reforms now contained in the draft constitution were deemed so sensitive they
were rejected at the summits in
Amsterdam
in 1997 and Nice in 2000. So does their inclusion in the draft constitution
indicate a change of heart among EU leaders? (Financial Times
23-6-03
)
In
the book
New Britain,
My
Vision Of
A Young
Country by
Tony Blair
(ISBN 1
- 85702
- 436
- 2
) published
by Fourth
Estate Ltd, he
writes on
page 70
the following,
which may
be helpful
in persuading
the Government
to hold
a referendum
on the
new Constitution
for the
EU:- "We
have led
calls to
reform the
CAP and
the institutions
of Europe.
Of course, if
there are
further steps
to integration,
the people
should have
their say,
at a
general election
or in a
referendum." (e-mail
Alan Wood
14 Jun
2003)
The
constitution gives the EU full
"legal personality" and lays down that EU law will have primacy over
the law of member states. It prohibits
Westminster
from
legislating in most areas of national life - agriculture, justice, energy,
social policy, economic cohesion, transport, the environment, and aspects of
public health - unless
Brussels
chooses to waive its power. There is to be a
full-time European president, elected by prime ministers, and a foreign
minister. The EU will acquire competence
in "all areas of foreign policy, including the progressive framing of a
common defence policy", though major decisions must be unanimous. The
European Court
, which
acquires vast powers, will ensure that
member states "actively and unreservedly support the EU's common foreign
and security policy". M Giscard said the
national veto is abolished in 50 new areas, including immigration and
asylum. There is to be a European prosecutor to tackle cross-border crime. The legislative
powers of the European Parliament are doubled at a stroke, covering the EU
budget and farm aid. The commission, which has complained of being reduced to a
"college of eunuchs", will take charge of justice and home affairs and
economic management.
Britain
will have only one commissioner, with periods of
non-voting status. Mr Hain said there were thorny problems to be resolved in
foreign policy, defence and criminal law, and a so-called "escalator"
clause slipped into Article 24 at the last moment that would allow future
amendments without parliamentary assent. He called the clause a formula for
"permanent revolution", fearing it would open the way for endless
erosion of national sovereignty. (Daily Telegraph
14-6-03
)
UKIP
challenged the government’s assertion that the devolved assemblies would
‘bring government closer to the people’. UKIP said that it would actually
achieve the opposite, with a tier of local government being removed, while Assembly
members would represent twice as many constituents as MPs. With assemblies
set to comprise a maximum of 35 elected members, that would mean one member for
every 192,278 people in the
North West
, compared with an average 89,730 people for each
Member of Parliament in the region. (UKIP release
16th June 2003
)
The
biggest winner
(from the Constitution) is probably
the European
Commission, which
gets general
executive and
enforcement powers.
The EU's
new foreign
minister will
be a
member of
the Commission.
The commission
president will
be elected
by the
European Parliament.
In fact,
the EU
will be
top-heavy
with presidents,
all trying
to out-president
each other.
A late
change last
week brought
in another
one: the
euro zone
countries are
to elect
their own
president to
represent them.
This Europe
of Presidents
will do
nothing to
bring the
EU closer
to its
citizens. The
truth is
that the
European Constitution
founds a
new union,
with a
single unified
structure and
legal personality.
The existing
structure, which
secures the
rights of
member states
to make
their own
decisions and
collective arrangements
about foreign
policy and
criminal justice
matters, will
disappear. The
EU
will have
"exclusive competence"
over trade,
competition rules,
common commercial
policy, fisheries
conservation and
the signing
of all
international agreements.
Most
other policy
areas will
be "shared",
including transport,
energy, social
policy, the
environment, consumer
protection, criminal
justice and
policing, and
"economic, social
and territorial
cohesion". "Shared"
is defined
to mean
that, when
the EU
decides to
legislate in
these areas,
member states
are forbidden
to. The
EU's proposed
criminal justice
powers are
particularly striking
because they
allow for
harmonisation of
national laws
and procedures
by majority
voting. This
obviously goes
to the
heart of
domestic policy,
particularly for
a country
such as
Britain with
a distinctive
common law
tradition, including
jury trials,
habeas corpus
and rules
of evidence
that differ
from those
in most
other EU
countries. Government
promises are
being overturned.
When the
Charter of
Fundamental Rights
was agreed
by the
Government in
2000, the
Prime Minister
assured the
Commons that
it was
a political
document only,
and there
was no
question of
it being
made legally
binding. It
is now
included as
Part Two
of the
Constitution, fully
legally binding
under the
European Court
of Justice.
The Government
is now
trying to
ensure the
charter is
applied more
sparingly by
insisting "due
regard" be
given to
some accompanying
"explanations". Other
convention members
were open
in their
view that
this was
a contrivance
to help
the Government
through its
embarrassing U-turn
at home.
Foreign
policy, which
is at
present decided
between national
governments, will
change completely.
The new
foreign minister
will "conduct
the
Union
's
foreign policy".
There is
provision for
majority voting
on policies
recommended by
the foreign
minister. The
commission acquires
a general
duty "to
ensure the
application of
the constitution",
backed up
by the
Court of
Justice. To
put the
matter beyond
doubt, it
is asserted
that "the Constitution
… shall
have primacy
over the
laws of
the member
states". The
draft constitution
will now
go to
the European
Summit in
Thessalonika, and
then to
an Inter-Governmental
Conference in
Rome later
this year.
The Government
has a
list of
"red lines",
and it
will succeed
on some,
perhaps most.
But it
is the
nature of
such negotiations
that other
positions have
to be
surrendered. Meanwhile,
the essential
structure of
the constitution
will remain,
uncontested by
the Government.
If the
Government is
sure that
the outcome
will be
good for
Britain, let
it have
the confidence
to put
its arguments
to the
people. After
all, it
was supposed
to be
all about
democracy and
creating a
Europe "closer
to its
citizens". (David
Heathcoat-Amory MP,
the Tory
party representative
on the
convention, Daily
Telegraph 18/06/2003)
Mr Letwin said: "The latest draft of the
new European constitution gives the EU a wide range of new powers to control
criminal law in
Britain
." In a speech to the Euro-sceptic Bruges Group, he added: "Under the
constitution
Britain
will not be able to use its veto to stop EU legislation that
defines serious crimes and sentences for such crimes. "
Britain
will also not be able to veto moves by
the EU to expand the area of criminal law over which the
Union
takes control. "For too long, the Government and those intent
in
Brussels
on creating a European superstate have expected that people in
Britain
will not notice the implications of treaty clauses that create the basis for
the EU to gradually expand its powers. (Daily Telegraph
12/06/2003
)
Britain
is ready to give up its permanent seat in the European Commission's decision
making "inner cabinet"
as part of a deal on the new EU constitution struck in Brussels yesterday.
The pay-off for
Britain
and
other large member states, who will all lose voting rights on the Commission for
five year periods, is that a new position of elected president will be created.
The post, for which many EU leaders believe Mr Blair would be ideally
suited when he is no longer Prime Minister, will come into being in 2009.
The agreement goes beyond outline plans for a reshaped commission agreed
at Nice in 2000. Peter Hain, the Welsh Secretary, who represents
Britain
on the
Convention on the Future of Europe which is drawing up the draft constitution,
said such a deal was "in our grasp" and would have Government support.
Mr Hain said it was more important
to strengthen the role of the Council of Ministers with a new president who
could represent the EU abroad than to ensure
Britain
always had a commissioner able to vote in meetings
of the
Brussels
executive. The
Council of Ministers is made up of ministers from each member state. "To be
perfectly honest, what is much more important than whether
Britain
gets a
commissioner (in the inner cabinet) at any one time is to have a stronger
intergovernmental thrust in the council," Mr Hain said.
Under the deal, a fundamental reshaping of the EU's institutions, each
country would have one European commissioner after the EU expands to 25 members.
But in a new move that goes beyond the Nice treaty, the number of
commissioners who attend meetings and have the right to vote would be reduced
from the current 20 to 15. Membership of this "inner cabinet" would be
determined according to a principle of "equal rotation". Under this
system, each country from the smallest such as
Malta
or
Luxembourg
to the
largest, including
Germany
,
France
and
Britain
, would
have a seat in the 15 member "college" for 10 out of every 15 years.
During the other five they would still have a commissioner, though in a
lesser role outside the inner core and unable to vote.
John Bruton, the former Irish prime minister and a member of the European
Convention, said
Britain
had
concentrated hard on getting the deal it wanted on and preventing the erosion of
national vetoes on tax and foreign policy more than defending a permanent
position on the commission. In the
row with Valery Giscard d'Estaing over the drafting of the constitution, Spanish
and Dutch representatives joined the British protest in which Gisela Stuart, the
British representative, walked out. The
draft plan would have allowed EU government heads to vote at any time to abolish
the national veto in all policy areas, including foreign policy, defence,
taxation and even constitutional changes, switching instead to a form of
qualified majority voting. (Daily Telegraph
07/06/2003
)
President Giscard d'Estaing, in a meeting to national parliamentarians,
has just revealed that the new EU Constitution will contain a self-amending
"ever closer union" mechanism.
President Giscard announced that elements which are preserved for
unanimity by bargaining ministers at
the intergovernmental conference, could STILL
become QMV at a later stage. "This
would happen without the need for any referendum, or even it would
seem a debate in the Commons," warned David Heathcoat-Amory, MP.
"If this is indeed in the new
draft, it is a dangerous denial of democracy."
The decision to shift to QMV would require a decision through unanimity
in the Council. However, given that
the Constitution would expressly authorise such
a development, there would be constant pressure in the years to come
to trigger it. To resist, member states would inevitably have to give
ground elsewhere in order to appear "good Europeans".
"It is a federalist clause.
The Government must veto it," added Mr
Heathcoat-Amory. (Conservative Party Release Date:
6 June 2003
)
The constitutional
draft is a smokescreen which is being treated as if it was poisonous gas. But,
when the smokescreen drifts away, there will be revealed a bloody great tank
with its gun pointed straight at us. However, the simplistic level at which the
debate is being conducted is also of concern. The discussion, in concentrating
on what is happening to the constitutinal draft, fails to recognise that there
are at least four models on "offer" of what the EU should be. There is
not "one" EU but versions of four
different models in operation. The
first is definitely a Germanic model, proposed by Schroder/Fischer under
pressure from the Lander - and Stoiber in parti