26 June 2004  
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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 so.

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 immigration.

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 affairs committee.

© 2004 The Spectator.co.uk