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A federal constitution with the heart of a manifesto By Noel Malcolm
(Filed: 28/07/2003) In the minds of government ministers, it is a mere "tidying-up exercise" which will impart new "clarity" to an existing state of affairs. In the opinions of its opponents, it is the greatest alteration in the rights and powers of government in this country since 1688 - or, possibly, since the execution of Charles I in 1649. But in the hearts and minds of the British people, the new European Constitution has hardly made any impression at all; it is viewed with either vague apprehension or almost complete indifference. This European Constitution has at last emerged from its 15-month-long drafting process, and only a few months remain before it will be hammered into its final shape by the politicians of Europe. In this country, there has been some noisy debate about the need for a referendum on it, but very little discussion about what it actually says, or about the significance of shifting the whole European enterprise on to a "constitutional" basis. Admittedly, the text is not an easy read: at roughly 250 pages of typescript, it is as lengthy as the longest constitution in the world (that of India), and more than 10 times the size of the world's most successful constitution (that of the United States). But as it lays down rules by which Britain may in future be governed, it surely deserves the most careful scrutiny we can give it. Why, in any case, was there thought to be a need for any such constitution? European integration had got along quite happily for nearly half a century, basing itself on a succession of treaties - Rome, Maastricht, and so on. With each new treaty, new powers had been passed to Europe. This process of incremental mission-creep could easily have continued, with a further round of additions and extensions. But the very nature of this incrementalism had led to complaints - not only from British Eurosceptics - that European integration was a slippery slope, with no clear end-point in sight. "We understand your fears," said the integrationists; "let us allay them by drawing up a proper constitutional document, in which all the arrangements will be spelt out, fixed and finalised." Fixity is, after all, one of the essential features of a constitution, which sets out the basic system of government of a state in a way that cannot (or should not) easily be changed. And so some sceptics accepted this offer; for all their misgivings about the implications of the word "constitution", they thought that giving Europe its own constitution was a price worth paying for halting the drift to "ever-closer union". They were, however, mistaken. The draft text of this European Constitution contains all the old onwards-and-upwards rhetoric of the previous treaties: "ever-closer union" is still there, in the Preamble to Part II, and the Preamble to Part I declares that the peoples of Europe are "determined" to forge a common destiny, "united in an ever closer fashion". The Common Foreign and Security Policy will be based on "an ever-increasing degree of convergence of member states' actions". The text is full of "objectives" to be gradually fulfilled - and for the fulfilment of which new powers may be added. And special provision is made for groups of member states to forge ahead with accelerated integration schemes of their own, in order to "reinforce the integration process". 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. Peter Hain, who was the Government's chief representative at the convention that drafted this text, is proud of the fact that he inserted an amendment stating that the powers of the EU were "conferred" on it by the member states. In this way, he claims to have preserved and safeguarded the primacy of national governments. But his claim conflicts with basic constitutional theory: if the amendment is part of the EU constitution, it will be authoritative only because of the intrinsic authority of that constitution itself. 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. The Indian constitution makes salutary reading here. Its list of the exclusive powers of the individual states includes major items such as agriculture and fisheries - matters controlled by the governments of Mysore and Uttar Pradesh, but not by those of Britain and France. 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. Some are necessarily contentious (imagine the howls of protest if Mrs Thatcher had tried to impose a British constitution which said that governments must not make full employment their priority). Others, even if universally approved, must still be subject to political decisions, because resources will always be finite. 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. In the words of the best academic study of the concept of sovereignty, Alan James's Sovereign Statehood, "the distinguishing characteristic of a sovereign state is that it possesses a set of legal arrangements relating to fundamental matters - its constitution - which exists in its own right". 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. Last month, Jack Straw made a statement to the House of Commons on this subject, which must count as one of the strangest statements ever made by a foreign secretary. "The current draft constitutional treaty," he announced, "shows that we are making progress towards our kind of Europe: a union of nations, not a superstate. It should help to settle the balance between the nations and the union where it should be, with the nations as the anchor of the union." The only clear point of resemblance between the nations and an "anchor" here is that an anchor can be speedily wound up. |