Be Careful What You Wish For – Part I

ConstitutionalAmending Treaty
Name change, job done?

There's been predictable howl's of outrage in the Conservative blogosphere over Downing Street's announcement that there will indeed be no referendum over any EU treaty changes. There seemed until today to be no hard definition of what diminution of the scope of such changes is required to allow the Government to feel free to abandon their manifesto commitment to such a referendum. Now we know that the handful of 'red lines' that Blair (but possibly not Brown) will insist on, but we know from his Blair's track record on 'red lines' that these commitments are meaningless. We have to assume the simple deletion of the word 'Constitution' will, in the end, suffice for our discredited Prime Minister and that for all the more encouraging sounds from the Brown camp it hardly seems likely that he would want to activly jump back in to the same mire as his predecessor ended up to his neck in.

It wouldn't be very interesting simply to parrot the standard, and in my opinion very convincing arguments of other Eurorealists, so I thought I'd take a slightly different tack. I actually used to be relatively pro-EU, even beyond the immediate aftermath of the Maastricht treaty. It has only been the ensuing years that have changed my view as the Commission, Parliament and Court of Justice of this insidious organisation have bullied and blackmailed as they twist, misuse and over interpret their powers to allow ever more functions to be exercised with ever less competence and common sense. I can still remember my pro-EU instincts but something tells me that, even if I had slept through the last 15 or so years, I would be one of those increasingly common Europhiles who would have the very gravest of misgivings right now, both over the nature of the constitutional arrangements proposed and the way in which the whole process of trying to implement them has been conducted. I thought I'd cast my mind back in time, forget about the intervening years, even as a mind experiment to pretend to have positively federalist instincts, and examine why this is.

There are very many reasons behind the hostility of this 'hypothetical me' to what we may soon be asked to hostility so I'm going to tackle it in two posts. Here I'll look at the Constitution itself and later the discreditable process that continues today to implement its provisions. It is all, I will admit predicated on the assumption, which history tends to show to be a fairly valid one, that the analysis of what the meaning of the changes by Germany's Chancellor of the day tends to be more accurate and honest than that of the serving British Prime Minister. I don't mean to take a cheap shot in saying that; I understand the reasons why British governments feel the need to present things the way they do, even if I do deplore them. In other words I do tend to believe Ms Merkel when in her assertions that it will be the Constitution in all but name, and as such I will frequently refer to 'the Constitution' as shorthand for whatever convoluted mechanisms are employed to enact its original aims.

So firstly, to rehearse some of the objections a proponent the EU may legitimately have to the Constitution itself, or the relabelled version there of. There seem to be facing has a number of elements that I could never accept regardless of the institution, or institutions, to which it applied. These have all been argued aplenty in recent years but the following would have been my Pro-EU self's main objections.

US Constitution - Just 17 amendments in 215 years
How many each year for a EU equivalent?

Process of Amendment: Most constitutions set a very high bar for amendment of their provisions, usually little short of the process by which the original constitution is adopted, if at all. This gives people confidence in the rule book that their legislatures must work within. The proposed EU arrangements allow for the bar to be very substantially lowered, removing the need, for those nations with a requirement or a tradition of allowing their people a say in changes to the structures within which they are government, to consult their citizens.

It's easy to understand why such provisions would be so highly prized in Brussels but they are still profoundly wrong, the equivalent of Westminster's Regulatory Reform Bill, which it is interesting to note that the most Europhile segment of MPs were bitterly opposed to, despite one of its roles being to aid the transposition of EU law in to our statute books without the tedious process of parliamentary scrutiny. It's no good to say that there was already the 'passarelle' provision. That was more limited in scope and equally objectionable.

Permissive Drafting: I think one of the reasons Americans still respect their constitutions, above and beyond its simple and rather inspiring language is the frequent use of phrases akin to 'Congress shall not…' It inspires hope and belief that there are limits to their government's ability to interfere in their everyday lives, no matter what government they may one day elect and what that government may wish to do. It is a contract between the state and its citizens, the terms of which are to this day is frequently enforced by an arbiter which, though perhaps not being fully impartial, is far less politicised than the ECJ; all US administrations know that any attempt to vary the terms of the contract in it's favour are almost certainly doomed to failure.

EU treaties take an opposite approach, in explicitly suggesting lists of areas in which governments, both national and EU may wish to act and providing few if in any no-go areas for interference by the state. Even those that are implicit in the charter of human rights can be overridden 'In the general interests of the union', not just the times of national emergency that most other constitutions accept as a minimum for the suppression of basic rights. If the ethos of the Constitutional Treaty and all previous treaties is maintained in any new arrangements the suggested areas for EU action will clearly carry with them a sense of being 'just for starters'. EU citizens will continue, unlike their American counterparts, to feel no confidence that they are governed ultimately by their own consent.

Vagueness: This is really just a variation on the theme above in many ways. One of the things that actually had me leave the moderately pro-EU camp was the successive interpretations by Commission and ECJ alike to interpret each and every provision in the most self aggrandising way possible. There was a clear need to much more prescriptive instruction to these organisations, but the original Constitutional constitution opened existing loopholes even wider.

As an example, there was nothing too offensive to me, at the time, about the idea of an adjunct 'European Citizenship' as it was presented at the time of Maastricht. This changed as evidence rolled in that both these bodies saw that this should eventually become our primary identity. This was a concept not foreshadowed in the treaty which was mute on the matter and I don't think that our leaders, on this matter at least, deliberately misled us. Any new arrangements should have either provided more specific directions to EU institutions, or in the alternative contained a directive that all provisions should carry an interpretation that is the most limited in terms of transfer of authority to Brussels. If EU bodies feel they need more powers they should always have to ask specifically for them rather than seeking mechanisms by which the scrutiny that provokes can be sidestepped. In many cases it was not the goals sought by the EU that caused offence but the underhand means by which it sought to achieve them. Even as a Europhile I was able to understand that, but it’s a concept that seems incomprehensible to more avid supporters of the project.

Competencies: To be honest I wasn't entirely happy with any of the proposed extensions of EU competencies, be they new areas of EU action entirely, or the migration of existing ones controlled under unanimity to QMV. Even with a generally positive outlook on the EU I felt most were a step too far that even if I felt I could live with, were doomed to cause nothing but discontent with, and disdain for, the EU.

The two headline areas that always crop up are foreign policy, and criminal justice. At a pinch I felt that subject to getting rid of the hopeless Javier Solana, a man who has made the wrong call on nearly every major decision throughout his life, and no change of UN Security Council representation, I could just about live with the former. Criminal Justice was, and is, a big no-no. It's unnecessary, as the disparate legal systems between England and Scotland for centuries of much closer union proves beyond doubt. The reasons quoted for it have also always been thoroughly dishonest. Who is vetoing vital anti-Terrorism measures other than for good reasons perhaps of civil liberties anyway? Too often the veil slipped and it was clear from day one it was more about smoothing the passage of more controversial measures such as a nebulous concept of xenophobia (the EU version, which excludes the US from nations you are not allowed to hate), a peculiar Italian view of counterfeiting (which targets the perhaps unwitting buyer of fake goods rather than the manufacturer) and foolishness like the swastika ban where individual nation states clearly have different issues to confront and different ways of tacking them.

Did anyone even pause to wonder what would happen when a case came before an English jury with, if statistics are to be believed, at least three people hostile to the EU project, and they heard that the law the defendant was being prosecuted under was not desired by Westminster but was an outcome of EU fiat? It's not impermissible to argue a jury nullification line in the English courts as I understand it. It is not usually a good strategy as most people are driven by a respect of the law, but when you force people to live under a system of law they may not accept the moral legitimacy of this would change.

I don't care now if the EU wants to make an arse of itself. I did then. Even NuLab have pushed this too far themselves, and look what happens – you end up with Nick Griffin celebrating his acquittal outside the courtroom. I always felt this would be the fate of most EU inspired prosecutions.

A sight to strike fear into any commissioner

Malapportionment in the Parliament: The Constitution did try to tidy the old formula for the size of each countries delegation, which was largely decided through horse trading, but the overrepresentation of smaller countries is still excessive. Ok, I can understand why Luxembourg deserves one whole MEP to itself which its size does not warrant, maybe two for reasons of practicality, as is the case for US congressional representation, but six?

I don't hear Wyoming demanding the type of overrepresentation that Luxembourg would continue to have in the reformed parliament, with each of their voters carrying the weight of roughly twelve German ones. One man one vote and, with all the great respect I have for Poland, square roots of people have no place in democracy either for all their mathematical uses.

Immunities: The Constitutional Treaty retained and extended the scope of immunity from prosecution for all manner of people working for EU institutions. If there's one thing I thing the EU could learn from Westminster's model of governance is the very limited scope of such immunities as Parliamentary Privilege. Equal treatment is an essential component of any good system of law; the fact that our representatives can and do fall foul of the laws they create and end up in court is, in the longer term a strength and not a weakness of the system.

Language: Let's be honest, and I think nearly all sides of the debate agree, the whole thing is a turgid dog's breakfast of a document. Even the attempts at sounding inspirational, confined mainly to the preamble, sounded hackneyed and unconvincing. This was even before the opening references to 'We the people of Europe…' became ludicrous as the evidence rolled in that this was anything but a project of the people of Europe.

I've actually read the whole damn original Constitutional treaty, and there were many other things I disliked, but on the other hand I could either live with, or in the alternative see not surviving the passage of time as national interests, common sense and practicality all intervened. These other issues, I counted roughly forty of the splodges of pink highlighter pen I used mark them with on my hard copy, would not have stopped me voting for such a Constitution in my Eurofanatic youth. I cannot though, imagine, no matter how I try, how much more pro-EU I would have to be to accept any settlement with the issues above, other than perhaps the last, still standing.

So that's why I don't like what was on the table, and what may be being reheated right now, but since I'm doing thought experiments, in the next instalment I will pretend these objections don't exist and that the whole document was entirely to my liking. Part II will look the folly of anyone who claims to have interests of Europe, or even the EU, at heart in accepting the way things have progressed since the French and Dutch rejections of the original Constitutional Treaty even leaving aside any question of it's democratic legitimacy.