Friday

29th Mar 2024

Opinion

Britain and the Constitutional Treaty

As discussions recommence on what to do about the Constitutional Treaty, now ratified by two thirds of the member states of the European Union, the question arises as to what is the position of the UK.

Anyone following such debates across Europe rapidly finds that the UK is lumped together with Poland and the Czech Republic as "the opponents" of the draft Constitution, a position seized on with relish by some French politicians who are keen to point the finger at somebody else and make us forget that it was France that (not for the first time) has blocked reform of the European Union.

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  • "Britain was central to the negotiations that agreed the constitutional text" (Photo: Richard Corbett)

Naturally, eurosceptics in Britain like to portray the Constitutional Treaty as something that is not in Britain's interests or has even been foisted on a reluctant Britain.

This is in fact far from being the case. Britain was central to the negotiations that agreed the text, the government signed the treaty and, as Tony Blair said to the House of Commons in June 2004:

"This constitutional treaty represents a success for the new Europe that is taking shape, is a success for Britain".

Of course, the British government is realistic enough to know that the current text of the Constitutional Treaty is unlikely to be ratified as it stands by all member states without further ado.

France alone will see to that. One of the leading French presidential candidates has called instead for a "mini-treaty". The other one has called for a complete re-negotiation of the Constitutional Treaty.

In such circumstances the British government is being realistic in holding fire and not holding a referendum on a text that may well be moribund, or at least subject to additions or modifications.

If it were a matter for simple parliamentary ratification, the government could well consider adding Britain to the list of countries that have endorsed the Constitution as a political gesture. However, the requirement for a referendum on the text as it stands - or, presumably, on anything approaching its scope and carrying the name "Constitution" - precludes such an approach.

Needless to say, the results of the referendums in France and the Netherlands, notwithstanding the positive outcomes of referendums elsewhere, have almost certainly made it more difficult to win referendums in some of the other member states.

Voting on a text that very few people will have read leaves the debate very vulnerable to superficial perceptions. One of the strongest perceptions that will linger in people's minds is the rejection by people in France and the Netherlands - and never mind that many of those voters were really expressing opposition to the government of the day rather than to the text itself.

Securing a compromise will not be easy

Perceptions are political reality, and there is no way around the fact that securing a compromise around a text that will be acceptable to all 27 governments and capable of ratification will not be easy.

Among the options available, it is not yet clear what is likely to achieve consensus. These options include:

* "Treaty-plus" options: keeping the text intact but adding protocols to it or declarations interpreting it in order to respond to concerns that have been expressed.

* Re-negotiating the text: re-examining the content, the style and name of the Constitutional Treaty, if possible without re-opening some of the complex bargains which were struck.

* A "mini-treaty": bringing in the emergency repairs needed for the institutional system to enable the union to cater for an ever growing number of members.

Of course, a mix of additional protocols, some re-writing and some deletions is also conceivable - but the more complex the approach, the longer it is likely to take. Nor should we forget that some 22 countries attended the "Friends of the Constitution" meeting in Madrid in January and expressed their attachment to keeping the current text as intact as possible.

Whichever option is chosen, there will have to be an Intergovernmental Conference (IGC) to negotiate and endorse whatever the new package entails. Such an IGC could, in theory at least, be short and sweet, and be held over this summer and early autumn enabling a new text to emerge by the end of the year. Whether that is feasible as a timetable will depend on the degree of consensus that emerges at the European Council meeting in June.

Already, some British voices are attempting to identify what are the essential elements that should be salvaged from a British perspective. Lord Kerr, formerly Britain's ambassador to the EU and former Secretary General of the Convention, whose knowledge on these matters is vast, writing in the Financial Times at the end of February, identified seven vital elements:

* Replacing the six monthly rotating "Buggin's turn" Presidency of the European Council with a full-time fixed term president, chosen by the heads of government to chair their meetings.

* Empowering the EU's High Representative for foreign policy with co-ordinating all external relations of the EU Commission and Council, on both of which he would sit.

* Introducing the reformed qualified majority voting system envisaged under the Constitutional Treaty which is more proportionate to the size of each country.

* Introducing the "subsidiarity mechanism" for involving national parliaments in prior scrutiny of all EU legislative proposals.

* Subjecting the Commission President to election by the European Parliament.

* Making more visible the principle of conferral, whereby the EU may only act within the powers given to it by the Member States.

* Introducing a secession clause, explicitly empowering Member States to leave the European Union if they so wish.

To the list I would, myself, add some others -

* Cutting the size of the Commission.

* Making all EU legislation subject to the double scrutiny of requiring approval by national ministers in the Council and elected MEPs in the European Parliament.

* Giving more prominence to the treaty article obliging the union to respect the national identities of Member States.

The charter of rights

More tricky is what to do about Part II of the Constitutional Treaty - the charter of rights.

Intended as a limitation on the powers of the Union, by obliging it to respect rights that, for the most part, member states themselves already have to respect, it has become embroiled in a debate about whether national courts would defer to the EU court when deliberating on rights cases under national law.

Perhaps the solution here would be to have a single article saying that the EU institutions are obliged to respect the charter on rights approved in 2000 in Nice, but that this would not apply to Member States (except when they are applying European law).

Another complex matter is the ambition of the Constitutional Treaty to codify all previous treaties into a single document.

This worthy idea led to a hasty re-casting of the original set of treaties which, whilst shorter, still represented a "constitutional" text of inordinate length.

Perhaps, here too, an answer might be to have a single article empowering the European Council, by unanimity, to codify and reorganise the existing treaties and to delete redundant articles, provided that the Court of Justice certifies that, in so doing, they are not increasing the competences or powers of the European Union.

Finally, there will no doubt be many suggestions for other additions to the treaty. Some of these should be looked upon favourably: articles on tackling climate change, respecting social security systems of member states and others may well make the text of the treaty more acceptable in some or all the Member States.

Negotiating these aspects may well be tricky but will inevitably be part of the final package.

All in all, it is high time that British politicians and others start thinking carefully about the details of this debate. Above all, they should not abandon this terrain to the tangential cliches that the eurosceptics are determined to push it down.

Their unrealistic and sensationalist portrayal of the issues is already leading the debate in a direction that is totally divorced from what the Constitutional Treaty actually says and from the political reality of what is likely to be negotiated among the 27 Member States.

This must be countered by a measured, factual and intelligent contribution to the debate by the true "eurorealists" - those who know that Britain's interests are best served if we and our neighbouring countries can agree on a settled, well functioning, democratically accountable European framework, better able to address those issues where a joint approach is mutually advantageous.

The author is a Labour MEP

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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