The proposed EU constitution fundamentally changes the union

By David Heathcoat-Amory
(Filed: 18/06/2003)

We sit in the vast hemicycle in the European Parliament building in
Brussels. This is the last full meeting of the Convention on the Future
of Europe. Our president, Valiry Giscard d'Estaing, has declared a
"consensus" on the draft European Constitution. Giscard's speech is
followed by a rather crackly version of Beethoven's Ninth, relayed over
the loudspeakers. Then it is champagne all round and much mutual
backslapping. A new state is being born, and I leave as quickly as

Fifteen months ago, we started out differently. Our instructions were to
design a simpler, more democratic Europe, "closer to its citizens". We
certainly failed on simplification. The draft constitution on my desk
runs to 224 pages, but there was never any real effort to streamline the
EU, reform its bureaucracy or cut the 97,000 pages of accumulated laws
and regulations known as the acquis communautaire.

Instead, the convention became a forum for institutional bargaining.
Each of the existing EU bodies jostled for more power. And they
succeeded. There is to be a full-time European President, elected by
heads of government for a renewable two-and-a-half-year term. The
European Parliament gets full law-making powers, shared equally with the
Council of Ministers. More than 30 policy areas have been moved from
national vetoes to qualified majority voting - a dramatic reduction in
the powers of governments and parliaments to block unwelcome proposals.

The biggest winner is probably the European Commission, which gets
general executive and enforcement powers. The EU's new foreign minister
will be a member of the commission. The commission president will be
elected by the European Parliament.

In fact, the EU will be top-heavy with presidents, all trying to
out-president each other. A late change last week brought in another
one: the euro zone countries are to elect their own president to
represent them. This Europe of Presidents will do nothing to bring the
EU closer to its citizens.

No one in the convention doubts the scale of the undertaking or the huge
implications for the way Europe is governed - except, apparently, the
British Government, which is completely isolated in maintaining that the
new constitution is just a "tidying-up exercise". In the convention,
this caused bafflement and then some hilarity. Peter Hain, the
government representative, belatedly declared a number of "red lines" on
proposals that he wants removed, such as majority voting on foreign
policy, social security harmonisation, and interference in criminal
justice procedures. But if these issues are so important to the
Government, how can it just be a "tidying-up exercise"?

The truth is that the European Constitution founds a new union, with a
single unified structure and legal personality. The existing structure,
which secures the rights of member states to make their own decisions
and collective arrangements about foreign policy and criminal justice
matters, will disappear. The EU will have "exclusive competence" over
trade, competition rules, common commercial policy, fisheries
conservation and the signing of all international agreements.

Most other policy areas will be "shared", including transport, energy,
social policy, the environment, consumer protection, criminal justice
and policing, and "economic, social and territorial cohesion". "Shared"
is defined to mean that, when the EU decides to legislate in these
areas, member states are forbidden to.

The EU's proposed criminal justice powers are particularly striking
because they allow for harmonisation of national laws and procedures by
majority voting. This obviously goes to the heart of domestic policy,
particularly for a country such as Britain with a distinctive common law
tradition, including jury trials, habeas corpus and rules of evidence
that differ from those in most other EU countries.

Government promises are being overturned. When the Charter of
Fundamental Rights was agreed by the Government in 2000, the Prime
Minister assured the Commons that it was a political document only, and
there was no question of it being made legally binding. It is now
included as Part Two of the Constitution, fully legally binding under
the European Court of Justice.

The Government is now trying to ensure the charter is applied more
sparingly by insisting "due regard" be given to some accompanying
"explanations". Other convention members were open in their view that
this was a contrivance to help the Government through its embarrassing
U-turn at home.

Foreign policy, which is at present decided between national
governments, will change completely. The new foreign minister will
"conduct the Union's foreign policy". There is provision for majority
voting on policies recommended by the foreign minister.

The commission acquires a general duty "to ensure the application of the
constitution", backed up by the Court of Justice. To put the matter
beyond doubt, it is asserted that "the Constitution . shall have primacy
over the laws of the member states". The draft constitution will now go
to the European Summit in Thessalonika, and then to an
Inter-Governmental Conference in Rome later this year.

The Government has a list of "red lines", and it will succeed on some,
perhaps most. But it is the nature of such negotiations that other
positions have to be surrendered. Meanwhile, the essential structure of
the constitution will remain, uncontested by the Government.

Those who have argued passionately for this constitution and those who
have struggled against it can at least unite in recognising its scale
and importance. It must be decided by a vote of the people as a whole.
Most other member states are planning to hold referendums next year.

If the Government is sure that the outcome will be good for Britain, let
it have the confidence to put its arguments to the people. After all, it
was supposed to be all about democracy and creating a Europe "closer to
its citizens".

David Heathcoat-Amory MP, the Tory party representative on the
convention, is the author of The European Constitution and what it means
for Britain, published today by the Centre for Policy Studies (#7.50),
57 Tufton Street, London SW1P 3QL