|Monday, 19 July 2004||
The task of agreeing a new constitutional treaty for the European Union with 25 countries around the table, all with their own interests and aims, was no doubt a difficult one. Compromise, fudge and imperfection were inevitable. The text that European governments ended up with on June 18th may be, as they say, the best that could be done in such circumstances. Fortunately, however, there is now a chance for those circumstances to be changed: at least ten countries will put the new treaty to their voters in referendums, while the others seek to ratify it solely through their parliaments. Those voters would do themselves, and the European Union, a great service if they were to reject this treaty and jolt governments into coming up with a better version.
Some European politicians and EU devotees have argued that the consequences of a rejection would be catastrophic. That is hyperbole. It might be true that if merely one country out of 25–Britain, say–were to vote no, the situation would be awkward for all concerned. Yet that can be dealt with when and if it occurs (Britain’s referendum may well not take place until 2006, the last or nearly last of all the polls). It would be bizarre indeed–unconstitutional even–if governments were to be holding referendums in which only one outcome is deemed acceptable. If you can’t take no for an answer, why ask the question? The European Union badly needs more popular legitimacy, as the big anti-incumbent votes and quite sizeable anti-EU votes in this month’s European Parliament elections showed. And the big flaw in the proposed constitutional treaty is that it does little or nothing to make Europeans likelier to feel comfortable with the whole enterprise.
Regular readers, and offended Europhiles, will recall that when the first draft of this proposed constitution was unveiled in June last year, we recommended (see article) that governments should throw it in the wastepaper bin and start again. Unaccountably, European leaders failed to take our advice. Partly, perhaps, this was because so much time had already been invested in producing that draft, but mainly it was because the treaty does bring some real improvements to the EU–for governments. For the people they serve, however, it does not.
This whole exercise, it should be noted, was supposedly intended to bring the Union closer to its citizens. The so-called Laeken declaration of December 2001, which launched the process of writing a new constitution to replace the existing treaties, talked of popular concerns about too many powers being exercised at European rather than national level, about the lack of democratic scrutiny, and about European institutions and practices being rigid and hard to understand. In fact, however, the new constitutional treaty focuses on a genuine but quite different problem: how to make decision-making easier in an enlarged EU.
If you measure the new treaty against that problem alone, it is a success: a clear improvement on the previous arrangements (see article). The new voting system is fairer and more workable than the absurd formula set up in the Nice treaty of 2001; national vetoes have been removed from several areas; the Union’s executive, the European Commission, will eventually (by 2014) have fewer commissioners and thus be less top-heavy; meetings of member governments, the European Council, will be presided over by one person for two-and-a-half years rather than a different country every six months; the Union will have one common representative for foreign policy rather than two, as now.
But the point of a constitution, or even of a constitutional treaty, as many European leaders now prefer to call it, is not simply to make the process of government easier. In some ways, just the reverse: it is to make sure that government happens under clear rules and constraints, so that it is hard for it to act and evolve in ways that citizens find unacceptable. Otherwise, effectiveness may be achieved at the expense of popular legitimacy and, ultimately, provoke a backlash. That is where Europe’s new constitution fails.
For starters, the new treaty is little easier to understand than its predecessors; nor, overall, are the new institutional arrangements. It was probably always hopeless to expect something that could be recited in schools, however. Much more important is the fact that the new treaty does nothing to provide citizens with any sense of control over the process of European government or the evolution of the EU.
Contrary to Laeken’s aspirations, no powers have been repatriated. Protections for “subsidiarity”–ensuring that issues are dealt with at the most appropriate level–are weak at best, non-existent at worst: national parliaments are invited to speak up if they think subsidiarity has been flouted, but the European Commission is merely obliged to take note. A procedure known as the “emergency brake” will now allow governments that are uncomfortable with EU measures in social security or criminal justice to opt out of them, but the provision is so vague that it is unclear how it will work. And the European Court of Justice may have been given a more powerful role in coming decades in interpreting the constitution and especially its attached Charter of Fundamental Rights in such a way as to enforce and accelerate integration. Or it may not have been. No one can be sure.
That lack of subsidiarity, of control, above all of any real sense of constitutional stability are the fundamental flaws of this treaty. The European Union does need a smoother, more efficient decision-making process, both for its own sake and so that it can enlarge itself even more in future, bringing in more countries in eastern Europe and the Balkans, and Turkey. But if voters are to feel comfortable both with that efficiency and that enlargement, they need a constitution that stabilises and controls the process properly. Such a constitution plainly cannot be achieved just by inter-governmental negotiations. It needs to be demanded by voters. That is why the best result in all the ten referendums would be a resounding no vote.
This article first appeared in The Economist