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VERBATIM REPORT OF SPEECH MADE BY

THE RT HON DAVID HEATHCOAT-AMORY MP

Member, Convention on the Future of Europe
and Chairman, European Research Group

to the EIGHTH CONGRESS FOR DEMOCRACY

held in London on Friday 1 November 2002

 

LEGAL AND CONSTITUTIONAL DEVELOPMENTS IN THE EU

THE CONVENTION ON THE FUTURE OF EUROPE

We are half way through the Convention on the Future of Europe and the pace is definitely quickening now. I go to Brussels pretty well every week now for two or three days at a time - so my French is getting very good, but I cannot say that my belief in or my hopes for European democracy are rising at the same speed.

In fact I have been very worried indeed at the document produced earlier this week, the draft Constitution, because although it is supposedly based on the discussions so far, I think it takes a decisive step in the wrong direction. It of course contains something for everybody but not very much that I can agree with. Martin Howe has sketched it out and I am not going to repeat the legal criticisms that he has so ably made. Certainly the endowment of the union with a single legal personality is a big issue, as is the effective collapse of the inter-governmental pillars, which have been defended by all government since 1992. Effectively, those pillars which deal with matters of foreign policy and defence and criminal justice and policing matters will be incorporated into a single institutional structure. We lucky people will have dual citizenship of this new body.

The question of a name is essentially a gimmick. I suggest that it should be given the name European state, because that is what it is and it is much better to be honest about this rather than pretend we will have something else if it is enacted in anything like the form of this draft. And I am afraid to say that our government - I know this is a non-party political Congress here, but I think I am allowed to make the factual point - is getting in its retreat early. Previously well-established and entrenched positions have been quietly abandoned.

Intergovernmental pillars I have mentioned but also significant is this question of the legal incorporation of the Charter of Fundamental Rights. The Charter was drawn up as a political document two years ago and we were given assurances by Robin Cook as Foreign Secretary and the luckless Keith Vaz as Europe Minister - who, in fact, said that the Charter would be no more legally significant than a copy of the Beano. Well, that assurance - I am sure given in good faith at the time - has lasted just over a year. We have to resist this. We must be perfectly clear that this is dangerous and we must resist it. But in doing so we must decide not just what we are against but what we are for, what we are in favour of.

I am for democracy, it’s almost as simple as that. I believe that we need a democracy founded on the rights of national parliaments and that is what I am trying to construct. But what we are up against is, I am increasingly sure, a kind of technocratic structure. I am constantly impressed by the scale of the technocratic undertaking that is the European Union. It has, of course, a veneer of democratic legitimacy in the sense that it is ultimately accountable to Ministers and the Council of Europe, who are therefore in some way accountable to parliaments and therefore to the people. But this again is a technical definition. Of course you have the European Parliament but it is not a parliament in the real sense because there is no European people, no European electorate, no European public opinion, no European demos on which Parliament can be founded. So, in practice it is run by officials and I have counted the number of working committees that there are. There is no figure you can find but by literally counting them one by one in the present budgetary documents I have counted 496 working committees that in fact take a majority of the decisions. This is a submerged part of the European Union that most people do not know about and these committees don’t publish agendas or minutes. Of course, all bureaucracies hold onto their powers and wherever possible expand them and they use a crisis as an opportunity to expand them.

One of the shadows across enlargement at the minute, the background music to the Convention, is the fact that enlargement is in my view quite threatened by the slowdown - and that possibly understates it - of the German economy. All previous enlargements have been, frankly, funded by the German taxpayer and the economic motor of Europe has been the German economic miracle. That is over. And if I were a German today, and if I were one of the four million Germans unemployed, having just had a general election, I would be a little frustrated that the newly elected government cannot do anything for me if I. All the interest rate decisions are being given to a secret committee of bankers somewhere else and you cannot if you are the new German government cut taxes or raise expenditure because it gets you into trouble with the Growth and Stability Pact, - what Mr Prodi now calls the Stupid Pact. So this is a real concern about what is happening to the German economy and the German country, the German state and I think enlargement could be in some difficulty. But that will not be used as a reason for a change in the democratic nature or decision making of Europe but rather as an opportunity to consolidate powers at the centre.

There are many other examples of what I mean. I am on a working group and there is a Commission representative on it. He uses his arguments and sees his duty as almost exclusively to defend the Commission as an institution. So instead of being a discussion about competencies and where power should reside, imaginative and creative ideas are really being replaced by a kind of bargaining between the existing vested interests in Europe.

And of course the monopoly of initiative by the Commission is not seriously being questioned. It is quite odd actually: the Commission is supposed to be against monopolies - other people’s monopolies. They go around trying to stop monopolies but they guard their own monopoly of launching draft laws and proposals. I find it quite scary that there are twenty people in Europe, twenty unelected people, twenty Commissioners, who themselves have the sole right of initiative over laws and proposals. We would not tolerate that in any other body which goes under the name of democracy.

So we have to crack open this technocratic structure and replace it with something which is worthy of the name of a working democracy. And I think the Commission should become a Secretariat, servicing the wishes not just of the Council but, more than that, of the national parliaments. So that when the national parliaments of Europe believe that they can only deal with common issues - as will be the case with trade issues, cross-border issues, bypassing and agreeing common actions - their initiative should then be given to the Commission to work up into proposals. That should be the chain, and the Secretariat, as I would call it, would be headed by a Chief Clerk. And if Mr Prodi is suitably qualified for that, he could apply for the position of Chief Clerk of the Secretariat of Europe. That is what I call radical change and if the Convention is genuinely interested in closing the gap between the rulers and the ruled in Europe, those are the sorts of proposals that it should at least be considering. But they are no part of the present draft Constitution.

And of course the other force at work, which Martin Howe touched on, is the Charter of Fundamental Rights. I am not a lawyer, but in my untutored way I see this as being a mechanism to extend EU competence in another way. I think the European Union is becoming not just a law-making body but a distributor of rights.

The rights in the Charter are much more extensive, more general and more widely drawn than the rights in the European Convention on Human Rights, of which we are already a member. There are rights to health care, to education and training, to consumer protection, to environmental protection. I believe that what is going to happen is that where these policy areas are shared between ourselves and the European Union - as they are - then if a citizen was to try to sue for breach of those rights, the EU would immediately be involved and would be responsible for correcting the breach.

I am on a working group, as I mentioned, to do with competencies and it has been decided, against my objection, that consumer rights is a shared competence because there are two specific Directives which have already been enacted on consumer rights, labelling and so on. Therefore if our imaginary citizen was to say that he had bought some product which was dangerous and his consumer rights had not been protected, the EU is drawn into the legal issue. And the EU will not try to avoid responsibility: the EU will welcome the responsibility and will then say to really protect this poor citizen’s rights, of course we need more regulations, more laws, more directives, and here they are. And so by another process the escalator, upwards, ever upwards, to the European Union level will have found a new mechanism through the apparently benign influence of human rights. And who can be against human rights?

And again all this has got to be fought. And it has got to be fought by just running our flag up on the solid principle of self-government, so difficult to acquire, so easy to surrender. I am sure that the Convention will be moving in the wrong direction. We have already touched on the discussion of foreign policy, defence, policing and criminal justice. All these matters will go into the first pillar and become Community Competencies. It is, of course, a myth. There is no European Union foreign policy.

We thought we had discovered an issue where there might be one when in the summer Parsley Island, which was a Moroccan island apparently - or perhaps it wasn’t - was the subject of a dispute between the colonising power of Spain and the Kingdom of Morocco about this wretched little island called Parsley Island. Now you might have thought that was an issue that this European Union foreign policy could have sorted out. It was actually the United States - Colin Powell, the US Secretary of State - who sorted that out.

And over Iraq there is no European foreign policy. We say Yes, the Germans say No, the French say Maybe. There is no unified foreign policy and it is a vanity to pretend that there is.

But regardless of that, the principle is that these issues of use of force abroad, or potential force, use of force at home, criminal justice, these go to the heart of what a nation state is about. Because it is about the coercive force of the state they raise very delicate and important issues about consent and control and accountability. That is why they have to remain under national control, because if they go to the EU level in full, as I believe they will, it removes choice from the electors.

I mentioned the frustrations of the German electorate finding that their government has no economic choices. Imagine the frustrations of people when there is no choice over matters like immigration or asylum. I am on a new working group on justice and home affairs. It is being proposed that immigration should become in full a European Union competence. Just think what that means. It means that decisions about who can come into which country and settle in which country, on a quota system or whatever, are decided by a new office, a technocratic solution, in the European Union. So it will not matter who anyone elects. This plays straight into the hands of the extreme right, because once you remove choices from electorates then the extremists can say "What is the point of having an election? It’s all going to be decided by people above you anyway".

I don’t want to live in a country where these choices are permanently removed from people to bureaucrats, but that, I promise you, is the real meaning of the Constitution before us.

So I will just say in conclusion that I am going to fight this. I have left the EPP and have joined with a number of other allies, small in number, cross-party, but with the right democratic ideas and ideals. We are working up an alternative to the likely Convention outcome, we believe in founding a democracy on national parliaments, we believe in massive simplification, we believe in the primacy of the people. We meet again next week to take these ideas forward. I can give you just one final assurance: that whatever Giscard may say, I am not going to be signing up to his particular Constitution.

 

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