Howe speech

REPORT OF SPEECH MADE BY

MARTIN HOWE QC

to the EIGHTH CONGRESS FOR DEMOCRACY

held in London on Friday 1 November 2002

The so-called Constitutional Convention under Valéry Giscard d’Estaing has now published its preliminary draft of a "Treaty Establishing a Constitution for Europe". This body has been beavering away for many months, its proceedings almost unnoticed by the media, particularly in Britain. It deserves to be noticed.

The Convention is consciously modelling itself on the process which gave birth to the United States of America and its Constitution. The process of formulating a constitution for Europe is regarded by Giscard and the other members of the Convention as a profound act with far reaching consequences. There is nothing dishonourable in advancing the argument, as Giscard openly does, that the European Union should evolve into a State, and that it should be provided with the constitutional mechanisms to achieve this aim.

But on this side of the Channel, as so often before, it is heads in the sand as usual. Instead of confronting this development and asking the British people whether they really want this to happen, every attempt is made to belittle or ignore its real importance. Our Foreign Secretary, Jack Straw, compares the exercise of creating a constitution for Europe with writing a constitution for a golf club. It is presented as simply a bit of tidying up of some untidy treaties. Once again, we see a mixture of self-delusion and mendacious deception of the British people about the real consequences of developments in Europe, instead of an honest debate about what those consequences are and whether we want them or not.

Let’s consider the draft Constitution itself. It is only an outline. Many of the draft Articles merely indicate in general terms what will be covered, and other sections consist only of lists of clauses to be inserted later. Its provisions are subject to amendment by the Convention or by the member states. Nevertheless its structure will set the framework for further discussion, and will largely define the terms of debate. The draft Constitution itself is reinforced and amplified by a series of reports on specific subjects produced by working groups of the Convention.

We can leave aside the reference to the retention of national identities, which is legally and constitutionally meaningless. The constituent parts of the United Kingdom can be said to have retained their national identities, even though they became constitutionally integrated into a single unitary state. The reference to "certain common competences on a federal basis" is an accurate description of what the framers of this Constitution are setting out to achieve, although the word "certain" rather modestly conceals the enormous range of matters which would be covered as exclusive or shared competences. The word "shared" competence is rather misleading, since in areas of "shared" competence, as and when the Union takes action, the member states may act only within the limits defined by Union legislation. For "shared" therefore read "transitional" or "on sufferance until the EU takes it away."

This Constitution would represent a major conceptual shift from the present position. At present, the European Union and its institutions are international organisations which are established by treaty between the member states. They are the creatures of the member states. As such, their powers are limited to the competences which the member states have conferred on them by treaty: even if these competences are interpreted ever more widely by the Commission and the European Court.

A Constitution is conceptually different. It defines and limits and shares out powers between the Union and the member states. By doing so, it defines, limits and confines the powers of the member states. It is true that Article 8 would provide that any competence not conferred on the Union by the Constitution rests with the member states. But this clause is very similar to the Tenth Amendment to the US Constitution. The Tenth Amendment has not prevented the USA from developing into a fully fledged state, nor prevented the Federal authorities – Congress, President and Supreme Court – from amassing greater and greater powers at the expense of the States. No-one would argue that the States of the USA are independent nations even though they have a considerable degree of internal autonomy: in many respects greater than that which would be permitted to the member states of the United States of Europe under this Constitution.

The Constitution would create a new and different starting point when it comes to defining the respective powers of the EU institutions and the member states. Any suggestion that this Constitution would just be a tidying up exercise that would not alter anything of substance is in the realms of fantasy. The European Court pointed out in the EEA Agreement case that it interprets the legal texts which it enforces largely by reference to their "objects and purposes". This means, as pointed out in that case, that identically worded provisions in two different treaties can have very different effects. Clearly, changing the legal basis of the EU from a series of treaties to a self-contained Constitution would fundamentally alter the Court’s view of the "objects and purposes" of the fundamental legal texts which it is applying. This would radically affect its interpretation and application of treaty provisions as well as of the scope of directives and regulations. In practice, there would be a presumption that the member states are only permitted to exercise powers in the residual areas left to them under the Constitution, and even in those areas they would have to fit in with any over-arching EU policies or foreign policy imperatives in accordance with their duty of ‘loyal co-operation.’

That leads to the question of the name for this body. Article 1 of the draft constitution sets out four alternatives: European Union, European Community, United States of Europe or United Europe. This issue of the name has already allowed the British government to engage in some silly and irrelevant posturing. No doubt it will block the adoption of the name "United States of Europe". It may even force the removal of the word "federal" from the second clause of Article 1, quoted above. But unless such cosmetic changes are accompanied by profound changes to the body of the Constitution itself, changes of this kind will merely conceal and not alter the true nature of the animal which is being created.

The true nature of the successive steps taken in Europe has been repeatedly obscured by silly and irrelevant arguments about the meanings of words. One such semantic argument has been about whether or not the European Union is or will become a "state". Let us look at the substance rather than the label. Community law is recognisable as a classic federal system of law. Sovereignty is exercised within certain fields by the central European authorities to the exclusion of the authorities of the subordinate units of government, the member states. The federal laws apply directly within all parts of the federal state and override any local laws which conflict with them. The subordinate units of government may be punished with fines if they disobey the federal laws.

The scope and content of the federal laws, and the powers of the federal institutions, are determined not by the lower units but by the organs of the federal authorities, most importantly by the supreme constitutional court or European Court of Justice. The scope of the remaining powers left to the lower units of government, is limited to what is left after the federal authorities have applied and interpreted their own laws.

In addition, the EU satisfies a number of the other requirements for the creation of a state recognised by international law. It has a Citizenship of the European Union. The Union has a clearly defined external frontier, with free movement of citizens inside that frontier and a common system of visa control on foreign nationals who cross that frontier. The Union has an executive (the Commission), a legislature (the Council of Ministers in conjunction with the European Parliament), and a developed judicial system with the European Court as supreme court, a lower Court of First Instance, and a developing further tier of specialist courts and judicial bodies.

The Union has its own currency and a common economic policy, with legally binding guidelines on the member states' conduct of macroeconomic policy and on budget deficits. It has a common foreign and security policy, it is developing its own armed forces, and it is creating a nascent system of federal criminal law through such measures as the European arrest warrant and the ‘harmonisation’ of substantive criminal laws. The inevitable conclusion must be that the European Union now possesses many of the most important features which are the recognised attributes of a State. Choosing not to call it a State will not alter the reality.

Under the guise of simplification, it would divide its provisions between those that are fundamental, and those that supposedly merely set out policies. That would open the door to a relaxed method of amendment of the supposedly non-fundamental provisions, at least by dispensing with the requirement that each member state should ratify such changes in accordance with its constitutional requirements, and possibly by permitting amendments to "policy" articles by QMV rather than unanimity. If that is done, very important "policy" powers, such as for example the already broad power to legislate for single market matters under Article 95 EC, could be yet further broadened without a right of veto.

The Constitution would abolish the existing "three pillar" structure of the EU which was established by the Maastricht treaty, and merge it into a "single institutional framework." Foreign policy and criminal and judicial matters would become fully supranational instead of being in the present hybrid area. The Union would be given full "legal personality" in international law, so that treaties would be entered into by the Union in its own name and member states would, like states of the USA, no longer be parties to international treaties under their own names.

The supremacy of Union law over the laws of member states is reinforced by Article 8 of the draft Constitution, which also imposes an "obligation of loyal co-operation vis-a-vis the Union" on member states. Such a duty would go beyond the existing duty under Article 10 EC on member states to facilitate the achievement of the Community’s tasks, and in the creative hands of the European Court could readily be interpreted as a duty to co-operate even in the residual areas of competence which would be left to member states.

Article 15bis of the Constitution would establish a new post of President of the European Council: in effect, a new semi-permanent President of Europe, although with term and method of election yet to be defined. Article 18bis would expand further the powers of the President of the Commission.

The EU Charter of Fundamental Rights would be given substantive legal effect under the Constitution. Since the Charter contains many provisions which relate to spheres of policy which at present only have relevance to the member states and do not impinge on EU competences, this can only be a Trojan horse which will be used to subordinate further areas of residual competence of member states to the jurisdiction of EU courts and institutions.

What the Constitution lacks, and where it differs from the American historical precedent which the Convention is trying to mimic, is any serious democratic dimension. It would further strengthen the EU power structure for the benefit of the European élite. The European bureaucratic and political élite will seek to force it through with the minimum of real democratic scrutiny. In place of any real commitment to democracy, Article 34 contains Orwellian new-speak about ‘participatory democracy’ through so-called ‘citizens’ organisations’, i.e. the unrepresentative Brussels lobby-groups which already have far too much power and influence. Its commitment in Article 35 to a uniform procedure for the election of members of the European Parliament would be used, via national lists and EU and state funding of elections, further to insulate that body from any real accountability to the voters.

The pace of European integration has quickened again. There were nearly 30 years between the original Treaty of Rome and its first major revision under the Single European Act. Maastricht followed 7 years later. Amsterdam and Nice then followed in short succession. Nice has expanded the areas covered by QMV and expanded the powers of the institutions. Enlargement of the EU will in practice make it easier for measures to be passed under QMV because it will be harder to gather together the increased numbers of states needed for a blocking minority; and the new entrants will be client states whose votes will be readily biddable in return for favours in other areas.

It was argued that the changes made by Nice were necessary in order to allow an enlarged EU to work. One might have thought that the need for any further constitutional step should be assessed once it was seen how the changes by made the Nice Treaty worked out in an enlarged EU. Yet this new Constitution was drafted before Nice even came into force following the Irish referendum re-vote. This demonstrates that the process of European centralisation of power has developed a momentum of its own which has virtually disconnected the process from external events or objective justifications. Issues such as enlargement are merely used as a pretext to justify an agenda which is pursued with quasi-religious enthusiasm for its own sake.

This development needs to be met with a simple and consistent political response, built up over time as the Convention progresses. If there is to be a European constitution which will embrace Britain, then the British people must first must be consulted in a referendum. The British people have through the processes of their history delegated legislative powers to their Parliament. Those powers are for Parliament itself to use and exercise, not to transfer to other bodies. As John Locke argued, the transfer of legislative power to another body, as distinct from the mere exercise of legislative power, requires the consent of the people from whom Parliament originally derived its power to legislate.