The way ahead for Europe
Tony Blair is right: the European
constitution is a defeat for federalism. It is instead a triumph
for centralism. Daniel Hannan outlines the sort of treaty
the EU needs if nations are to retain their independence
Join me in a little thought experiment. For several months now, Tony
Blair has been insisting that the European constitution would be a
defeat for Euro-federalism. Within hours of appending his name to
it, he announced that, far from creating a superstate, the constitution
was about ‘sovereign nation-states co-operating together’.
Let us play along with the Prime Minister for a moment. Let us imagine
that he really has seen off the Euro-zealots and protected the supremacy
of national governments. What, in these circumstances, might we reasonably
expect the constitution to contain?
First, there would be a proper division of powers. The EU would be
confined to cross-border matters, while what one might call ‘behind
border’ issues would devolve back to the member states. Brussels would
continue to have a role in such areas as international trade, environmental
pollution, and elements of aviation. But the nations would retrieve
control over swaths of policy now within EU competence: agriculture,
fisheries, social policy, immigration, defence, together with all
aspects of industrial relations, employment law and indirect taxation
which are not truly necessary for the functioning of the single market.
This is not to say, of course, that countries would be prevented from
adopting common initiatives in these areas. But no longer would sceptical
states be dragged à contrecœur into policies that their people disliked.
The more federally minded governments would be free to use EU structures
and institutions to amalgamate to their hearts’ content, with no pressure
on the more reluctant nations to join them.
Having made this distinction, a skilfully drafted constitution would
include checks and balances to prevent the EU extending its own powers.
Wise founding fathers know how to anticipate the power-hunger of politicians.
Euro-integrationists might argue, for example, that since fish do
not recognise national borders, it is vital to have the Common Fisheries
Policy (oddly enough, this logic seems to apply only to British fish:
the EU’s Baltic and Mediterranean waters have remained outside the
CFP for 30 years). Or perhaps they might claim that since low taxes
in one country put pressure on others, we need a Common Fiscal Policy.
Until now, such questions have been settled by the European Court
of Justice (ECJ). Under a quirk of the rules, you don’t actually need
to be a judge to be appointed to Europe’s supreme court. Many on the
ECJ bench are academics or politicians who have never heard a case
in their home countries. Unsurprisingly, they think more like legislators
than judges, missing no opportunity to widen the scope of their authority.
Indeed, some of them have admitted, extra-judicially, that they see
the goal of ‘ever-closer union’ as more important than the dots and
commas of the treaties.
A truly decentralising constitution would tackle such judicial activism.
This could be achieved by referring all questions touching on sovereignty
to a tribunal made up of leading jurists from the member states: the
President of the Conseil d’Etat in France, the head of the Bundesverfassungsgericht
in Germany, the Master of the Rolls from this country and so on. The
tribunal would meet for only a couple of weeks a year, leaving its
members free to run their home jurisdictions the rest of the time.
They would therefore be less likely to go native than Luxembourg-based
judges who depend on the EU for their livelihoods.
While we’re at it, why not apply the same principle to the European
Parliament? Instead of having specialist Euro-MPs who justify their
salaries by passing laws at EU level, a non-superstate constitution
would surely propose a return to the pre-1979 system, with an assembly
comprising seconded national parliamentarians, elected on respectable
turnouts, meeting for three or four days a month. When I suggested
this to an MEP the other day, his face became mottled with outrage.
‘This is a full-time job’, he rasped. ‘If they were only here one
week in four, they’d never get through all the legislation.’ Precisely
And what about the European Commission? Is it not outrageous that
an unelected politburo should have the right — let alone the sole
right — to propose new laws? A genuinely democratic constitution would
place the right of legislative initiative with accountable national
governments. Any state which wanted to propose a common European policy
would be free to do so, and invite like-minded governments to join
it. The Commission would be left as a civil service carrying out the
will of elected ministers.
Finally, a well-crafted constitution would be short. It would not
seek to impose the transient values of one generation on posterity.
Rather, it would confine itself to delineating the frontier between
the EU and the member states, leaving all residual powers to the citizen.
With this Platonic ideal of a constitution in our minds, let us now
turn to what Mr Blair has actually signed. Our suspicions should at
once be piqued by the curiously negative way in which he is promoting
it. This constitution is good for Britain, he says, because of all
the things it doesn’t do. There will be no European army; we’ve thwarted
plans for tax harmonisation; we’ve kept our veto in social security.
Even if all these things were true — and, as we shall see, some of
them are pretty questionable — they hardly add up to an argument for
ratification. In what ways will the United Kingdom be positively better
off? Are we so reduced as a people that we are expected to thank Brussels
for letting us levy our own income tax?
Something else should be niggling at us. If all these proposals have
been kept out of the document, then what is in it? Surely it doesn’t
take 333 pages, plus hundreds of codices, to say that there will be
no European army. Let us look, then, at what it does contain.
We can do this easily enough. The full text is available online, and
in a reader-friendly version, at www.euabc.com. We don’t have to read
very far before we discover some things that Mr Blair has neglected
to mention. Alarm bells should start ringing by the third page. ‘This
constitution,’ says Article I-5a, ‘shall have primacy over the laws
of the member states.’
Ah yes, say the Europhiles, but there’s nothing new there: the superiority
of EU law was already established when we joined in 1973. Oddly enough,
I can’t remember them saying this at the time, but we’ll leave that
aside. The doctrine of the supremacy of EU law is an invention of
the ECJ. It has never been recognised in a treaty, and has been rejected
by most national supreme courts. Germany ruled in 1992 that EU law
had force in that country only to the extent that it complied with
German Basic Law. The French justice minister made the same point
in 1996: ‘This primacy does not apply to the [French] constitution.
Indeed, it could not be otherwise, since it is from Article 55 of
our constitution that international commitments derive their authority.’
Two years ago, in the metric martyrs’ case, our own Court of Appeal
ruled that EU law could not override parliamentary sovereignty.
Yet, in a little-noticed declaration tacked on to Article I-5a, EU
governments have effectively sided with the ECJ against their own
judges, recognising its claim to supremacy, not only over parliamentary
statutes, but also over national constitutions. In legal terms, this
makes the EU a state. It will henceforth derive its authority, not
from a series of international treaties — on the day the constitution
enters into force, all existing EU treaties are dissolved — but from
its own founding charter. This point is reinforced by the next clause,
Article I-6, which bestows legal personality on the Union, enabling
it to act as a state under international law.
Any lingering doubt is removed by Article I-11: ‘The member states
shall exercise their competence to the extent that the Union has not
exercised, or has decided to cease exercising, its competence.’ There
follows a list of areas where Brussels jurisdiction is specified:
transport, energy, trade, competition, agriculture, fisheries, space
exploration, social policy, public health, employment policy, consumer
protection, asylum, immigration, criminal justice, foreign affairs.
No wonder Mr Blair keeps wittering on about ‘schools’n’hospitals’:
they’re pretty much all he’ll have left.
When the Prime Minister claims that there will be ‘no federal superstate’,
he is half right. It will be a superstate all right, equipped with
every attribute of statehood that international law recognises: a
defined territory, common borders, a citizenry, a legislature, a legal
system and supreme court, a constitution, treaty-making powers, a
head of state and a defence capability. Article I-6a also gives it
the outward symbols of statehood: a flag, a national anthem (‘Ode
to Joy’), a motto (‘United in diversity’) and a national day (9 May).
But Mr Blair is right to say that it is not federal. In federations,
there is a clear demarcation between central and state authority.
Under the proposed constitution, by contrast, the EU can itself extend
its jurisdiction without reference back to the nations.
There was a great deal of self-congratulation when Mr Blair removed
the word ‘federal’ from the draft. But, as things stand, its inclusion
would have been an improvement; for this is the constitution, not
of a federal state, but of a unitary one. Once it comes into force,
the nations of Europe will in many ways have less freedom of action
than, say, US states, which can decide such issues as indirect tax
rates and whether to retain the death penalty.
I cannot think of any national constitution that busies itself with
housing policy, the right to strike or the treatment of the disabled.
Yet the EU constitution, by incorporating the Charter of Fundamental
Rights, has a great deal to say about all these questions. No wonder
God has been excised: the awesome presumption of the constitution’s
framers leaves no space for Him.
Britain is still plaintively insisting that the Charter will not be
directly justiciable. But the senior judge at the ECJ has helpfully
told the Financial Times that the Court will recognise not only the
Charter, but also the Common Foreign and Security Policy — and it
is he, not Mr Blair, who decides.
Let us deal, finally, with the argument that the constitution simply
rehashes the existing treaties. On one level, this is untrue. The
constitution abolishes 43 national vetoes and extends the competence
of MEPs to 36 areas; it creates an EU foreign minister and diplomatic
corps; it establishes a criminal justice system, with its own prosecuting
authority and police force, as well as common rules on asylum and
But even where it is true, so what? The fact that something appeared
in a previous treaty does not make it right. If we objected to, say,
the Common Agricultural Policy, we should have used the constitution
as an opportunity to junk it. The whole point of the exercise was
to design a lasting European settlement from first principles.
Supporters of the constitution complain that the ‘no’ campaign is
based not on a specific dislike of the constitution, but on 30 years
of accumulated prejudice against Brussels. There is an element of
truth in this. But the constitution confirms and extends all the things
that people dislike, but have not hitherto been asked about. That
is why, despite all his protestations about facts and myths, Mr Blair
is so reluctant to be drawn on detail, preferring windy generalities
about ‘making Europe work’, ‘being fully committed’ or — my particular
favourite — ‘three million jobs at stake’.
Like previous British leaders, he is seeking to sell the deal as the
opposite of what it really is, claiming, Major-like, to have defeated
the Euro-fanatics. His trouble is that, between now and the referendum,
people may glance at the text. They won’t be duped again.
Daniel Hannan MEP is a member of the European Parliament’s constitutional
© 2004 The Spectator.co.uk