still planning, still plotting: the eu constitution and the handover of britain
WORKERS, JANUARY 2004 ISSUE
Architects of the new European order? Left to right: Valery Giscard d'Estaing, Chairman of the Convention; Giorgio Napolitano, Chairman of the Committee on Constitutional Affairs, and Hans-Gert Poettering, Chairman of the Group of the European People's Party
IN SPITE OF the failure of December's Intergovernmental Conference (IGC) to agree the proposed new European Union Constitution, we have not seen the last of it. It will be resurrected, and the implications for us in Britain are serious -- unless we put a stop to it through a referendum.
In June 2003 Workers (issue entitled "Why we need a referendum") reported on the Convention on the Future of Europe and its offspring, the draft new European Constitution. Workers warned that, under the terms of the constitution, EU law would override nations' laws. A supranational state would supplant the powers of nation states to draw up economic and defence policy, asylum and immigration policy, industrial and employment policy, transport, energy, and public health policy, and much more besides.
The draft constitution -- ambiguously entitled "A Draft Treaty for Establishing a Constitution for Europe" -- now contains further radical changes, added late in the proceedings of the convention. These include: a mutual defence guarantee to rival NATO; policy areas requiring the unanimous agreement of the member states to be transferred to QMV (qualified majority voting) without formal amendment of the constitution; an increase in QMV to over 40 new policy areas; loss of the national veto over EU expenditure and Britain's budget rebate; and the creation of a European Foreign Ministry.
If it were ratified, the constitution would become part of British law. Any questions of legal interpretation will be adjudicated by the EU, not the relevant countries. In other words, it will become a constitution for the Britain -- without having been drafted here, nor requested by Parliament or the people. It would be amendable only with the consent of foreign interests.
Only Labour
Only the Labour government -- with Lib Dem support -- pretends it is anything other than a constitution. "The proposed changes, though important, do not involve any fundamental change in the relationship between the European Union and member states," said the government's White Paper earlier this year.
But former Italian prime minister, Lamberto Dini, said, "Anyone in Britain who claims the constitution will not change things is trying to sweeten the pill for those who don't want to see a bigger role in Europe."
In fact, Labour's "tidying up" is a profound change, involving the repeal of all existing treaties -- the Treaty of Rome, the European Treaty, Maastricht, Amsterdam, Nice. More than comparable with the founding of the EEC in 1957, the European Constitution is as significant as the Acts of Settlement of 1689 and 1701. At stake is nothing less that the repeal by the back door of that uniquely British institution, the Constitutional Monarchy.
End of Britain
It would spell the end of the supremacy of Parliament and the end of Britain as a self-governing entity. The pound sterling, if it survives, would dwindle to a mere symbolic currency. The Constitution would create an entirely different EU, separate and above the member states, with its own powers and a legal personality (Title I, Article 6). The European Court of Justice (ECJ) would become Europe's Supreme Court.
There is a curious legal twist to all this. Under the British Constitution treaties do not have the force of law in our domestic courts. A ruling over the Maastricht Treaty in 1994 said the government could repudiate or fail to comply with obligations under the Foreign Affairs section (Title V) of the treaty.
It is not true to say we are governed by EU law already. There has to be a British Act of Parliament to instruct the courts to give legal effect to a treaty, as with the European Communities Act of 1972. So up until now, national law has prevailed. And Acts of Parliament can be repealed.
Non-compliance would be a serious matter. But it is not correct, as Foreign Secretary Jack Straw claims, that treaties have precedence over national law. Unless, of course, that treaty is repealed and replaced by a constitution, the ultimate source of legal authority, conceptually different from a treaty. If the government handles this "treaty" in the usual way it will incorporate it into English law by amending the 1972 Act. By doing so, Parliament would have abolished its own supremacy. We must insist that it does not have the power to fetter its own sovereignty and deprive itself of the right to repeal legislation.
Listening to Straw contradicting himself under questioning, anyone would think the government is simply in a muddle. "Any international treaty takes precedence over national law," he says, disingenuously. But in the White Paper, his government has written: "The ultimate guarantee of parliamentary sovereignty lies in the power of Parliament to repeal...the Acts which give effect to the EU treaties in this country."
In truth, Labour will say whatever sounds best at the time.
The reality is that Blair has promised his friends in Europe that by excluding the voice of the British people, he will deliver a Yes to the constitution. It is only the British government that repeatedly mis-states the situation by downgrading it to a treaty. While many continental countries will have referendums on the constitution, Blair attempts to evade the issue, insisting that referendums on treaties "is not the British way".
Addressing the Rally for a Referendum on November 7, Martin Howe QC delivered judgment on the Constitution, describing the "miasma of institutions in Brussels", where it was "impossible to see any clear line of democracy -- whereby to throw the rascals out". His publication, A Legal Assessment of the Draft Treaty, sets out to answer the key question of how ratification will affect "our right to govern ourselves in accordance with the wishes of the British people through our democratic institutions". He confirmed everything previously stated on the subject in Workers, with the added insights of a legal mind.
Howe quotes John Locke: "The Legislative cannot transfer the power of making laws to any other hands. For it being but a delegated power from the People, they who have it cannot pass it to others." Some of those who attended the rally pointed out that the logic of this is that such power cannot be transferred into foreign hands even in the unlikely event of the British people voting yes in a referendum.
At the heart of the matter is the concept of what constitutes a people -- a demos, a nation. Europe has no such homogeneous demos. Representatives of different peoples come together in Europe by mutual arrangement, as at the Convention on the Future of Europe, but this does not guarantee a democratic outcome.
Consensus?
The convention did not call for anything as grandiose as a constitution, but this is what it got because it was susceptible to being browbeat en by ideologues. Although the draft treaty was supposedly drawn up by consensus, alternative views, arguments and amendments were repeatedly disregarded.
This bodes ill for the poorer countries of eastern Europe. The real significance of enlargement, says Howe, is that these new candidates will be client states whose votes will be biddable in exchange for favours.
It had been argued that the Nice Treaty was necessary to enable enlargement to work. Now it is clear that Nice wa s to be swept away in any event -- the Constitution was drafted by Giscard d'Estaing before Nice. Enlargement was merely the pretext to pursue an ideological agenda.
Blair and his chums want us to be grateful for the removal of the word "federal" from the "treaty". It has been replaced by a clumsy phrase. Competences (powers) shall be exercised "in the community way", which means...federally!
Big room, even bigger ambitions: the European Convention at "work"
New legal order
In fact the European Court of Justice has been advancing legal doctrine ever since 1963, when it declared the European Community to be "a new legal order" created by the Treaty of Rome.
By 1991 the court, advancing economic and monetary union, stated with irreproachable honesty, "The provisions of the Rome Treaty on free movement and competition, far from being an end in themselves, are only a means for obtaining those objectives." "The Rome Treaty," it went on, "constitutes the Constitter of a Community based on the rule of law", and "States have limited their sovereign rights, in ever wider fields".
The court developed the doctrine of the "occupied field", whereby "the transfer by the States from their domestic legal system to the Community legal system...carries with it a permanent limitation of their sovereign rights".
The reaction of national courts, however, has been to reject the supremacy of the European Court of Justice.
· In Italy in 1974 the court was declared to have "no power to violate the fundamental principles of constitutional order or the inalienable rights of man".
· In France in 1993, it was found that Maastricht conflicted with the French Constitution Article 55, which had to be amended before ratification.
· There was a high-profile case in Germany in 1994 concerning the over-interpretation by the court of powers conferred by Maastricht.
· As late as 2000, Belgium retained the right to dis-apply Community law
· And in Britain in 2003 in the "Metric Martyrs" case of Thoburn v. Sunderland City Council Lord Justice Laws said: "The British Parliament...being sovereign, cannot abandon its sovereignty. Accordingly, there are no circumstances in which...the ECJ can elevate EC law to a status within...English domestic law to which it could not aspire by any route of English law itself."
While it may seem incredible that MPs should think they can obliterate a thousand years of history and struggle, "the doctrine of the supremacy of Parliament is not written in stone", warns Martin Howe, "but rests on continued judicial acceptance of its validity". That it is not secure, but can succumb to a drift of opinion over time is illustrated by the case of the "metric martyrs", where leading counsel for a public authority was prepared to abandon English law.
Sovereign
It is clear that we cannot trust the judges or the politicians to defend the structures of a sovereign state. We must do that ourselves, and in the process discover what to keep and what to throw away. The future -- twenty years down the road, say -- may not be clear, but what is certain is that British people must run their own country. No one can stand aside, least of all those who call themselves socialists.
Yet the government is not getting an easy ride. One of its own pro-EU MPs, Gisela Stuart, a member of the convention which drew up the constitution, has expressed alarm at the threat to British sovereignty contained in the proposal. In the week before the failed IGC, she warned: "The convention was riddled with imperfections and moulded by a largely unaccountable political elite set on a particular outcome from the very start...[and] many of whom see national parliaments as an obstacle."
Stuart accused many MPs and MEPs on the convention of wanting to climb on the euro gravy train, and called for a referendum on the issue. Her views are secretly shared by many MPs in Blair's party, most of whom so far lack Stuart's courage.
Want to know where your MP stands on this? Check out www.vote-2004.org.uk, a website calling for a referendum on the European constitution. It has a handy constituency checker, plus links to email your MP.