In last Saturday’s
Times there was a very important letter on the European constitution. It contained a proposal which ought to be equally acceptable to Europhiles and Eurosceptics, to the Government and the Opposition. The letter was written by Roger Alford, an Emeritus Reader in Economics at the London School of Economics.
“The proposed European constitution is of such importance to Britain and has such potential for unintended consequences that its examination deserves a research and analysis effort at least as intensive and as long-lasting as that applied to the five tests for euro entry. This requires a number of teams, mainly of independent experts in a whole range of fields covering politics, law, economics and international relations, all with ample support.
“Their brief should be to examine the structure of political power and decision-making in Europe which will emerge under any such constitution to see how it will affect Britain’s national self-determination, and particularly our democracy and its perception by the British people, as well as our more detailed political and economic interests, including the possibility of our being consistently outvoted on issues important to us.”
Of course, such an inquiry would have to be impartial. Mr Alford does not go on to ask for a referendum, though such an inquiry would pave the way for a referendum.
Mr Alford is right to emphasise three issues, none of which has been given proper analysis by the Government. The first is “unintended consequences”, the second is “political power and decision-making in Europe”, and the third is “self-determination and democracy”. It is not Eurosceptic to raise these three concerns; British Europhiles agree that they are important, and the Government claims to share these anxieties.
The American Constitution is more than 200 years old, yet it is still producing unintended consequences. Its framers intended to leave to the individual states all matters not specifically given to the Federal Government. Indeed, one contrast between the proposed European and the United States constitutions is that America is far more explicit in its protection of states’ rights. However, the Supreme Court has repeatedly taken to itself decisions which were originally intended to belong to the democratic process of the individual states. It has been said that “the Supreme Court has raped the Constitution”.
In the past few days, this has produced yet another Supreme Court decision which the framers could not have foreseen. The court has overruled a Texas law banning homosexual intercourse. At first sight one would sympathise with the Supreme Court, which has taken the same view as existing British law. Nevertheless, it replaces Texas democracy with Supreme Court law, against the original intention of the Constitution.
Will similar things happen under the European constitution? Undoubtedly they will, and we shall not always find that the European Court of Justice takes the liberal side. In the Texas case, the issue is sexual. Do we think that our own laws on prostitution, obscenity, bigamy, marriage, homosexuality and incest would be better made by the European Court than by the Westminster Parliament? Under the proposed constitution we would have no choice.
Political power has been at the centre of the drafting of this constitution, but not at the centre of the debate. The proposals involve a wholesale abolition of individual national vetoes, including Britain’s. In their place will be a much larger number of decisions by qualified-majority voting. The proposed new formula will require a simple majority of nations with 60 per cent of the European population.
The smaller nations know that this will greatly reduce their influence. The Dutch, for instance, are very worried but do not think they can do anything to prevent it. The British Government has indicated that qualified-majority voting on tax, foreign policy and defence will not be acceptable. Perhaps the Prime Minister will win those battles; perhaps not. What is certain is that we shall give up our protective veto in some 20 to 30 vital areas of policy.
Unfortunately, some other vetoes will not disappear. There is no proposal to deprive the Commission of its monopoly right to introduce new laws. Obviously a monopoly on proposing laws creates a veto on laws which are not proposed. There is also the Franco-German alliance, stronger than ever. It has a combined population of 140 million, well on the way to 40 per cent of population required to block legislation. One view of the draft constitution is that it has been a highly successful operation to entrench the dominance of the Franco-German alliance. Its bargaining power is not likely to work in favour of British interests, or of those of the smaller European nations.
The constitution was supposed to increase European democracy; ministers have claimed that it will strengthen the role of national parliaments. In fact, many powers will be transferred away from the nations and the only additional power proposed for national parliaments is the right to send a “reasoned opinion” to the Commission. The Commission is obliged only to “review” such opinions.
One cannot trust Tony Blair on these issue of Europe and democracy — he spins like a top. One cannot even rely on him to pay attention to the concerns of the House of Commons. So far, he has paid little attention to the Commons European Scrutiny Committee, a strong cross-party committee with a Labour majority.
Last Thursday that committee reported on the criminal justice proposals. They found the British criminal law is a “fundamental issue of sovereignty”, that the removal of the relevant British vetoes will undermine democratic legitimacy, that the proposed European public prosecutor would be a potential “engine of oppression” and that national parliaments would be “marginalised”. Will the Government veto these criminal justice proposals? We shall see. I wish the Government would put British democracy first.
If Britain is to ratify this, or any other, European constitution, it is essential to secure the informed consent of the British people. That would require full information about the likely consequences of adopting the constitution. Such information would have to involve a detailed professional assessment, made by independent experts, on the scale of the Treasury assessment on the euro.
Consent would also require full parliamentary scrutiny. In the most recent case, the ratification of the Nice treaty, Parliament was able to scrutinise the preamble to the Bill, but no amendments could be made to the terms of the treaty itself, at least in the House of Lords. The new constitution for Europe is a new constitution for Britain which ought to be examined, line by line and word by word, in both Houses. But it will presumably be presented as a treaty, though a unique and revolutionary one; amendment of the treaty’s terms may be impossible. If so, the new constitution would go through without proper parliamentary scrutiny.
Under the existing procedures, it would certainly be possible to move an amendment to make final ratification depend on a positive vote in a national referendum. In the Commons that will presumably be voted down by the Labour Party; in the Lords it may be carried — the case for a referendum is overwhelming. But Mr Blair could still use the Parliament Act to overrule the Lords, if only because he would be likely to lose such a referendum.
If we have no adequate professional assessment, a very limited parliamentary scrutiny under pressure from the whips, and no referendum, there will be no proper process of national consent. It is Europhiles who need to consider the consequences of that.
Without the informed consent of the British people, the new European constitution can never become an accepted basis for the British constitution. There will always remain a widespread belief that it is essentially illegitimate. In 2001 the Labour Party won a large majority in a election which did not contemplate any new European constitution. If that majority is used to ram through the ratification of the proposed European constitution without information, amendment or referendum the new constitution will remain illegitimate, even if it has been signed. The British people will not have it.
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