Monday, May 26, 2003
The European Constitution - 26th May 2003, 23.14

The Constitutional draft, in pdf format, is 148 pages long and has changed in some important aspects from the original draft s published earlier this year. We can note no shift from the centralised superstate originally put forward by Giscard D’Estaing where the European institutions were responsible for all core competences and ‘permitted’ national states to act in certain areas. This new draft has dropped the federalist rhetoric and added an ‘intergovernmental’ flavour, as we can note from Art 1.5, Cl. 1:

“The union shall respect the national identities of its Member States, inherent in their fundamental structures, political and constitutional, including for regional and local self-government. It shall respect their essential State functions, including for ensuring the territorial integrity of the State, and for maintaining law and order and maintaining internal security”.

The problem with this defence of national sovereignty is that it relies upon a continental definition of the State: one that is institutional and represented primarily through a bureaucracy, whereas the web of legal and constitutional convention that underpins the British state remains legally unrecognised. Effectively, the institutions of the British state would act as agencies and conduits for European regulation but their legal underpinnings would be gradually replaced (as they are at the moment) by new laws and regulations.

This is not the full picture but I suspect that this cultural disjuncture between the British and continental systems of jurisprudence has extremely worrying consequences.

Under Union Competences and Actions, the competences are now transferred upwards from the Member States to the supranational institutions through a process known as conferral. The Union will act up to the limits of its powers and areas which fall outside of these competences will remain with the Member States, under the subsidiarity principle. However, the balancing act of conferral and subsidiarity is undermined by Art 1.9, cl.3 which states that all actions which can be “better achieved” at Union level, or which Member States are unable to “sufficiently achieve” will fall within Union competence. Hence, the divisions of power between the Union and the Member States will be set by the European Court of Justice, a body known for its centralising instincts, and one can foresee judgements that set remarkably high standards for subsidiarity to take effect. To make the pill even more bitter, “national parliaments will ensure compliance” with the new laws of the Union, confirming their role as rubberstamp assemblies.

The initial clauses confirm the role of a common foreign and security policy, the coordination of economic policy and the takeover of social security policy (under the coordination of social policy), ensuring that the private pension provision that Britain currently holds, is now in danger of being reallocated, at some later date, at the direction of the Union. Indeed, the power of the Member States is so circumscribed that a policy area must be stated and defined within the Constitution as within their remit, to fall outside the powers of the Union. I haven’t come across any as yet.

The first few clauses appear to show that the Union has potentially no check on its power, given that there are no balances to the executive in terms of judiciary or legislature. Legally and theoretically, the Constitutions sets out a state, unaccountable and unchecked.

More tomorrow, and Iain Murray has promised his thoughts on this historical document.


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