EU Constitution Briefing Paper # 01

Leolin Price QC

Introduction

Masquerading as a "Constitution", the Giscard draft does not succeed in defining a permanent constitution or constitutional settlement for the European Union or any permanent or lasting balance between its powers and authority and those of its Member States.
It does not present itself as such a document. Its adoption would intensify and continue what has been a process of constant constitutional change with summits and inter-governmental conferences, agreements and treaties making new additions to the treaty framework within which an "ever closer union" of the European peoples is to be achieved.

Giscard d'Estaing does not present us with a simplifying and clarifying finalisation of that process. Instead, his draft is a formula for its continuation. Massively and frighteningly, in confusing complexity, with pretentious rhetoric and language of depressing triviality, he provides an Integrationist Manifesto. Some enthusiasts for a Union which never stops adding to its "competences" may rejoice; but realists - whether they are enthusiasts for Community or Union or opponents who believe that the Treaty of Rome adopted what was, and has developed into, a tragically mistaken system of law-making and government - will want to put this imprecise, foolish and dangerous document into the dustbin of history.

The Preamble

The preamble, presented as a draft by the Presidium, begins with a quotation from Thucydides ("Our Constitution is called a democracy because power is in the hands not of a minority but of the whole people"). Pretence is thus prominently placed at the very beginning of this fascinatingly undemocratic document.
What is said - badly, haphazardly and controversially - in this preamble is not needed in a Constitution. Reference to "re-united Europe" invites speculation as to which (if any) previous unity is now revived! Reference to "the democratic nature" of the Community's "public life" defies what, in government and law-making at the Community's integrationist centre, is the reality. And who knows what is meant by "solidarity" in what is said to be a striving for "peace, justice and solidarity throughout the world"? (And why solidarity "throughout the world"?)
More importantly, what in previous Treaty language has been "ever closer union" now becomes our (supposed) determination, "united in ever closer fashion, to forge a common destiny". Expressed in slightly changed words, this draft commits us to that "ever closer union of the European peoples" which has hitherto been the underlying motivation and label for a never-to-be-completed process of transferring more and more power from Member States to the Community. The continuation of that relentless policy is what this Manifesto is about; but those who read beyond the preamble and understand, as the starting position, the remarkable extent of law-making, government and power already exercised at the centre of the Community, will recognise this draft as a Constitution in at least this sense: that, if implausibly anyone denies that there is already a centralised and integrating European State, the adoption of this Constitution will confirm that State's existence and make it absurd to persist in that denial.

Drafting principles

In this draft prolixity, complexity and confusion abound.
Whatever is unnecessary should be removed.
Complexity may be difficult to avoid but this draft makes no serious attempt to avoid the sort of complexity, which makes it understandable only by the dedicated and expert.
In a constitution - as in any legal document - the same word or phrase should always be used to convey the same concept.
If those principles could be applied, the draft would be greatly shortened; it would be more like a constitution; but it would still be a framework for government and law-making by bodies which are unacceptably centralising, authoritarian, unaccountable and inexorably pressing for more and more power.

Part I Title One

Article I-1 (Establishment of the Union) could be trimmed of what is unnecessary or controversial to read:
"This Constitution establishes the European Union, on which the Member States confer competences [why not "powers"?] for the attainment of the Union's objectives".

Article I-2 (The Union's values) manages to treat "respect for human dignity" and "respect for human rights" as two separate "values"; and in a second sentence says that these and three other "values" (liberty, democracy and the rule of law) -
"are common to the Member States in a society of pluralism, tolerance, justice, equality, solidarity and non-discrimination".

Which "society"? Is that another word for the Union? And what "pluralism" is referred to? The latest Oxford Dictionary has 2 definitions: can the reader choose for himself? Or perhaps what is intended is "pluralist" as the opposite of "totalitarian" (but it is not possible to recognise this Constitution's further and continuing centralisation of power in constitutionally unaccountable bodies as protectively "pluralist" in that sense). Or perhaps "pluralism" is what the draft elsewhere refers to as "diversity". And what is "solidarity"? Is there any meaningful feeling of "one-ness" in the Union? Or does "solidarity" embrace trade union and other concepts embodied under that heading in the Charter of Fundamental Rights which is Part Two of this draft Constitution? And could it be interpreted so that failure to join in any action is unforgivable disloyalty?

That erratic second sentence could conveniently be omitted from Article I-2.
Article I-3 (The Union's objectives) is long and most of its clauses raise conceptual questions. Objective 1 states an "aim". Is an aim just an "objective"? Or the overriding "objective"? Objective 2 states what the Union "offers" to its citizen, and this includes "a single market where competition is free and undistorted" (but there is no sign that distorting quotas, subsidies and destructive derogations from anti-competition rules are to disappear, or that what is a selfishly protectionist Zollverein is suddenly to change its protectionist spots).
Objectives collected under the number 3 begin with a statement that the Union shall "work for a Europe of sustainable development" and refers to "a social market economy aiming at full employment and social progress". But what is "social progress"? If it means whatever the reader wishes, the words "and social progress" should be omitted.

Objectives 3 next state another "aim", namely "a high level of protection and improvement of the quality of the environment". Without internal commas does that refer to protection of the environment? Or, as the same objective says that the Union "shall promote scientific and technological advance", does it refer to protection(ist) safeguarding of such advance? But why is there any need to refer in this Constitution to such promotion, unless it is to set down a marker for central interventionism in science and technology?

The next part of Objectives 3 starts by saying that the Union "shall combat social exclusion" - presumably a positive Union duty to be prayed in aid of central interventionism in whatever "social exclusion" involves. But as Objective 1 states an aim to promote the Union's "values" and those values include "respect for human dignity" and "respect for human rights" express reference to combating social exclusion is needless repetition. The same passage in Objectives 3 states a positive Union duty to "promote social justice and protection, ... solidarity between generations and protection of children's rights". "Social justice" can mean what the reader prefers it to mean; so can "protection" if it means "social protection"; "solidarity between generations" has no clear practical meaning for compulsory positive Union action; and all of that part of Objectives 3 could easily be prayed in aid to justify busybodying central interventionism.
Objectives 3 next states a positive Union obligation to "promote economic, social and territorial cohesion, and solidarity among Member States" - another incantation of "solidarity" (!); but what, in this statement of obligation, is "social and territorial cohesion"; and what, in this linguistic muddle, is "solidarity among Member States"? More scope for busybodying central interventionism as an obligation!
Objectives 3 next requires the Union to "respect its rich cultural and linguistic diversity" and to "ensure that Europe's cultural heritage is safeguarded and enhanced". But what is that particular mixture of respect and obligation doing in a constitution? Is there "respect" only if all the law-making and every judicial decision must be in every language spoken anywhere in the Union? And is the Union out of its "own resources" to bear the cost of translation?
If at the Union's dirigiste centre nothing is done about "cultural heritage" will it be open to a Member State or citizen to complain? And if it does nothing to "ensure" the continuation of a long established local repertory theatre will that be all right because the local repertory theatre is not part of the apparently single,

Europe-wide, cultural heritage?

Objective 4 is a statement about the Union's relations with the wider world: an obligation to uphold and promote the Union's "values and interests". Nothing more is needed in Objective 4; but there is added a Union obligation to contribute to a hotch-potch of matters none of which needs separate articulation at this point in the statement of Objectives.

Objective 5 says that these Union Objectives "shall be pursued by appropriate means, depending on the extent to which the relevant competences are attributed to the Union in this Constitution". The sceptical reader will be sceptical about the reality of that as a restriction on the Union's central powers ("competences").
Title I continues with material which is either new or is, for greater prominence, set out at the beginning of the Constitution.
Article I-4 after referring acceptably to the free movement of persons, goods, services and capital, and freedom of establishment, goes on to say that "any discrimination on grounds of nationality shall be prohibited". This prohibition could have unintended consequences. Citizens of other Member States, if resident here, can vote in local elections. If they must be allowed to vote in our national elections, important national decisions might be affected by their votes. For example citizens of Member States cannot appropriately vote on whether we in this country adopt the single currency or join the euro-zone. But, under this new provision, it might perhaps be argued that their exclusion from voting is prohibited!

Article I-5 (Relations between the Union and Member States) is new, and in paragraph 1 so oddly worded that it cries out for clarification and simplification. Respect for the national identities of Member States is not clarified by the added qualifying words; and respect for their "essential State functions, including for" three matters which do not include the administration of justice, the conduct of foreign policy and national security (although internal security is one of the three matters) suggests that there is a deliberate intention to leave open for future controversy what functions are to be regarded as "essential State functions".
Paragraph 2 in Article I-5 could do without its references to "the principle of loyal co-operation" and "full mutual respect" and merely say that -
"the Union and Member States shall assist each other [to carry out tasks which flow from the Constitution]"

but the quoted words which are there put into square brackets are unsatisfactory. What is a task which "flows from the Constitution"? Is it any action which is decided upon in accordance with the terms of the Constitution, or only any action which can be spelt out of the Constitution itself? Uncertainty of this kind in the Constitution for an ever closer union encourages the centralising integrationists to argue for their escalating accumulation of power at the centre.

Paragraph 2 also adds repetitiously that "Member States shall facilitate the achievement of" those tasks; and also "refrain from any measure which could jeopardise the attainment of the" Objectives. Is a "measure" legislation? Or is it action or conduct?
Article I-6 then, with admirably brevity, gives the Union a new "legal personality". But why is that necessary or desirable, if not to emphasise that, with legal personality, it really is a State?

Title II and Part Two

In Article I-7 the Union's new (European) Charter of Fundamental Rights is incorporated into the Constitution. Its terms do not coincide with those of the European Convention for the Protection of Human Rights and Fundamental Freedoms to which the Union is already committed; but paragraph 2 of Article I-7 now says that the Union "shall seek accession" to that Convention. The confusion created by this amalgamation of new Charter and much older Convention is not removed by Title VII of the new Charter (general provisions concerning the interpretation and application of the Charter). The Charter is surely unacceptable. Instead of any "broad consensus" in favour of it, the Charter - and Article I-7 and Part Two - should be rejected.
This new Charter - which previously had not received any support from our government - has its own Preamble. It asserts that "the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity". That enumeration of values differs from the enumeration in Article I-2, and, here, but not in Article I-2, the values are preceded by the unnecessary adjectives "indivisible, universal". Apart from the repetitious rhetoric, this new and unnecessary Charter is to be "interpreted by the courts of the Union and the Member States with due regard for the explanations prepared at the instigation of the Presidium of the Convention which drafted the Charter". A Constitution which, for understanding and interpretation, requires reference to external "explanations" is not a satisfactory constitution.

This paper will not comment in detail on this new Charter; but the Charter's Title III confirms that "solidarity" includes, although it is not confined to, workers' and trade union rights.

Article I-8 and Title V in the Charter refer to Citizenship of the Union and Citizens' Rights. Add-on citizenship of the Union goes back to Maastricht. It was then said that Union citizenship, as an addition to national citizenship, added rights but not duties, nor any new allegiance. Paragraph 2 of Article I-8, by saying that Citizens of the Union shall be subject to duties, is not itself new. When that appeared in the Maastricht Treaty it was shrugged off with the comforting but unconvincing proposition that as the Treaties did not impose any duties on citizens, the duties referred to were no duties and nothing like any new allegiance was imposed. The Presidium insisted that in this Constitution the rights should appear both in Article I-8 paragraph 2 and in Title V of the Charter; but in the two places they are not the same. This is exactly the sort of nonsense which cannot sensibly appear in a constitution.
* * *

This Note does not attempt a detailed commentary on Part I of the Constitution; and does not begin to examine in detail :

• in Part I, Title III (Union competences and actions); Title IV (The Union's institutions); Title V (Exercise of Union Competences); Title VI (The democratic life of the Union), Title VII (The Union's finances); Title VIII (The Union and its immediate environment); Title IX (Union membership); and the two Protocols; nor

• Part III (The Policies and Functions of the Union) with its 307 Articles and annexed Protocols; or

• Part IV (General and Final Provisions).

The operation and effect of those provisions is of massive importance, and merits the same sort of detailed study. This Preliminary Study is reasonably concerned with what appears in the opening Titles of Part I of this turgidly unexciting but dangerous document, because the tone of this whole document is set there. The remainder of this Note will present, without detail, a selection of conclusions about the whole document.
The Constitution's provisions about the Union's "competences": exclusive in areas where only the Union may legislate; shared; and, as one student of the Constitution thinks, other: are a maddening muddle. It is true that Article I-9 refers to a principle of conferral: that the Union's competences are conferred by Member States; but in the operation of this Constitution that concession is of slight value: the practice hitherto of an escalator, carrying us further and further into an ever closer union with constantly new competences to continue and intensify the authoritarian, irresponsible, unaccountable and uncontrolled character of Union law-making and government is not to abate at all. It is to roll on relentlessly.
The use of these competences is said to be governed by the principles of subsidiarity and proportionality. At Maastricht we were led to expect that the then new buzz-word subsidiarity would introduce a bonfire of unnecessary Union law; but it did not happen. After Laeken we were encouraged to think that the Convention might consider returning some powers from Union to Member States; but nothing of that sort finds place in this Constitution. The Protocol on subsidiarity and proportionality begins with a wish "to ensure that decisions are taken as closely as possible to the citizens of the Union" - a meaningless wish as the mass of Union law-making and other decisions are taken, far away from the people, in the work of the Union's unaccountable institutions. Complicated provision is made for consultation and monitoring but attainment of the Constitution's Objectives remains paramount. A confident prediction is that subsidiarity and proportionality will not, and are not designed to, curb the legislative and governing ambitions of those who run the Union nor bother those who are enthusiastic for union with or without understanding what is constitutionally involved.
With startling clarity the Constitution, and the law of the Union, are declared to "have primacy over the law of the Member States" (Article I-10); and Member States are required "to take all appropriate measures to ensure fulfilment of their obligations flowing from the Constitution or resulting from the Union's acts". Domination by the Union is of the very essence of this Constitution.
Those who run the dominating Union institutions are not, like our Westminster government, subject to the discipline of having to face our next general election. We cannot dismiss them by our votes even though expanded membership of the Union and extension of majority voting mean that our Westminster government and Parliament will have less and less control over what is decided; we, having none, will be increasingly deprived of our democratic power; and our national sovereignty, already sadly diminished, will be constantly and dangerously disappearing.
There are some areas in which unanimity will still be required, such as taxation; and changes to the Constitution itself, for example by creating new exclusive competences, will also require unanimous agreement; but for how long? The pressure, and middle-of-the-night-rush at intergovernmental conferences or summits, will continue to create an expectation of horse-trading and concession which will give initiative and power for change to the powerful institutions of the Union. Pressure for Union-wide tax harmonisation and Union taxation will not stop if this Constitution is adopted.
What is said about foreign policy is a masterpiece of confusion; and what is said about defence promises an alarming future for those who regard our defence as a national priority in which we must be free to make our decisions.
This Constitution would provide 2 European Presidents, of the Commission and of the Council. Remarkably, the proposal for a President of the Council was supported by our UK government. But the oddly organised State to be established by this Constitution would be, even more than now, in form and substance a true State and one which, on the international stage and in international negotiations, could gradually - or perhaps very quickly indeed - reduce and displace the role and status of our own government and state.
Justice and criminal law, affected already (in early prospect) by the infamous European Arrest Warrant, and to be further affected by a harmonising of criminal law and procedure which can be introduced by majority voting, is truly alarming. Sadly, our present illiberal government, does not hold habeas corpus and the right to trial by jury and other incidental characteristics of our common law in jealous high regard; and we could easily find ourselves sliding quickly and unthinkably into a Union-wide system of criminal law and criminal justice.
One continuing worry is about the Committee of Regions. Consultation with the Committee of Regions, including Committee members from UK regions, does not include consultation at the same time with Member State governments. Mr Prescott's curious assertion that regional government is not local government could prove prophetic: with "regional" government enhanced as national government diminishes.
In the newly enlarged federal State, attempting Union government and rule-making under this authoritarian Constitution for a collection of nations which do not have any recognisable sense of being a single nation or any common identity is not a promising prospect for those on whom it is imposed.
But, it may be asked, why not adopt this authoritarian, undemocratic and muddled Constitution and rely on the provision in Article I-59 allowing a Member State to withdraw from the Union? Tempting as that might be to some, it is not a sensible policy. The only sensible way of dealing with this astonishing Constitutional document is to reject it. There may be amendments to it at the impending inter-governmental conference; but no conceivable amendments can make it acceptable to a responsible government of the United Kingdom. The Constitution cannot be adopted without unanimous agreement of all Member States. Refusing agreement is a bit uncomfortable for those who, on our behalf at the Convention, have already appeared to accept provisions now included in the draft. Such discomfort is not accompanied by any political or moral obligation to reach agreement at the conference. Our national interest has priority and it would be a massive disservice to our nation if we were to be committed to this monstrously dangerous, confused and confusing document.
Let us, therefore, reject this document. It is a muddle. It is dangerous. It is not for us.