THE HOUR is late, but there is still time to improve the European constitution. And it is the duty of parliamentarians to try.

The opportunity for improvement is presented by the Government’s European Union Bill. Intended to pave the way for a referendum, it can be amended to do much more.

I understand the reluctance of those who are opposed to the constitution to do anything to make it more palatable. They may prefer to leave it as it is, feeling that unchanged it is more likely to be rejected by voters. But against the temptation to do nothing is the responsibility to do everything to ensure that the self-governing, democratic nature of this country is not put at risk by the constitution’s hotchpotch of new commitments and extensions of EU power.

With a little bit of luck the French people might bury the constitution or the Dutch issue its funeral notice. But no democrat can afford to assume either that there will not be a referendum in Britain or that, if there is one, the result of it will be victory for the “no” camp. Democrats need to prepare themselves not only for a referendum, but also for the possibility of a British “yes”. It is important that we do whatever we can now to limit any damage the constitution might do.

Sadly, we cannot change the words that have been negotiated in the Treaty of Nice but there are democratic safeguards which Parliament can insist on by amending the European Union Bill. As a minimum, democrats should press the Government to introduce: first, an amendment to the Bill to ensure that no decision to move to a common European Union defence policy — which has far-reaching consequences for Nato — could be taken unanimously in the European Council without there first being a specific Act passed by the British Parliament. This would mean that parliamentary approval would be required before a British Government could exercise its voting rights in the European Council on this vital issue. This is perfectly compatible with our obligations to the rest of the EU under international law. And it is a necessary democratic safeguard for our future security.

Secondly, we need an amendment to ensure that no British minister could agree changes to the constitution without going through the full existing ratification procedure in the UK involving primary legislation and, on occasions, a referendum. This would include such matters as the substitution of qualified majority voting for unanimity, such as in the area of taxation.

This amendment would overturn the effect of the simplified revision procedure, the new form of “passerelle” clause — which gives the right to the Council of Ministers acting unanimously to abolish national vetoes — without changing the text of the Treaty. Instead of only ministers deciding, Parliament, as at present, would have to pass legislation before any ministerial agreement in the councils of the EU.

There is a precedent for these amendments — and I was closely involved in establishing it. In 1978 the Labour Government in which I served legislated to ensure that in future no government minister could agree in the council to any extension of the powers of the European Parliament, without a prior Act of the UK Parliament.

Thirdly, the Government should add an “interpretative declaration” to the European Union Bill. This would, among other things, include an explicit wording that ruled out the new post of President of the European Council being held by the same person who is President of the Commission. It is important that this is ruled out because bringing together the executive powers of the President of the Commission with the intergovernmental power of the European Council (the heads of government) would be a big step towards integration.

The Government’s explanatory memorandum to the EU Bill deals with this, but it has no legal force. An interpretative declaration, by contrast, would have the full force of British law, indicating the Westminster Parliament’s understanding of the meaning of the words in the Treaty. A breach could thereby be appealed to the newly established UK Supreme Court. That court would then be able to uphold Parliament’s understanding of the specific words in the constitution, as set out at the time of passing the legislation. The court would not be imposing its own interpretation of the words — an important distinction for those who do not want our Supreme Court to develop along American lines.

Only by adding an interpretative declaration would the British courts be able to negate a judgment of the European Court of Justice, if the ECJ ever ruled in favour of double-hatting these two presidencies at some future date. Without this power the UK would be unable to stop a qualified majority vote for what would be a major move towards integration, one which the Dutch Government and others want and believe is allowed for in the text of the constitution.

There are many other instances where the wording of the proposed constitution is unclear, as has been shown by experts in the recent House of Commons European scrutiny committee report. Some of these hazy wordings could be clarified in the interpretative declaration — for example, stating Parliament’s understanding that all aspects of a common foreign and security policy are outside the power of the European Court of Justice.

I do not pretend that these suggested amendments would make the constitution acceptable to so many people that it would prevent a “no” vote in any referendum, but they would make it easier for the UK to prevent some of the constitution’s more damaging aspects being realised. Parliamentarians, irrespective of their views on the European constitution, have a duty to introduce these democratic safeguards.

Lord Owen’s New Europe pamphlet, The Legitimacy of Voting No is available from lordowen@gotadsl.co.uk

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