It takes 15 months to write up a constitution but only 15 weeks to write one off. Europe’s constitution is heading to earth, and could well burn up on impact.
Given that, for most of its history, the European Union has been co-directed by a country that changes its constitution every generation and had to get Thomas Jefferson to write its bill of rights (France) and a country whose political system was almost entirely designed by its American occupiers after World War Two (Germany), it is probably no great shock that the EU’s attempt to finally give itself a single constitution has not been a resounding triumph.
A predictable outcome
Indeed the constitutional convention was probably doomed from the moment the member states convened at Laeken in 2001. At that summit, which was abandoned due to a quarrel over the momentous question of whether the Food Safety Agency should be located in Helsinki or Parma (“The Finns don't even know what prosciutto is. I cannot accept this” pronounced a defiant Silvio Berlusconi, Italy’s answer to James Madison), the collected leaders nominated a septuagenarian former French president to be the constitutional architect of an expanding, forward-looking, “new” Europe.
It is now quite conceivable that the constitution, at least in anything resembling its present form, will never come into force. It will need to be ratified by 25 different states, some of whom are legally required to hold referendums on the issue (Ireland, Denmark), some of whom are likely to (Portugal, Holland, Spain), some of whom are considering doing so (France, Italy), and some of whom are under pressure from domestic audiences to do the same (Britain, Sweden). The probability of all these countries making what the Commission would undoubtedly call the “right” decision is not good.
The ‘no’ votes in the euro referendums in Sweden and Denmark, and the consistently vast majority against the euro in the UK, are the most obvious, but not the only, examples of popular discontent with the elite-driven integration that characterises the EU. Disturbingly high support for anti-establishment extremists, such as the Front National in France, the Pim Fortuyn List in Holland, the Freedom Party in Austria and various members of the governing coalition in Italy, also indicate that the goal of an “ever closer union” is haemorrhaging support even in traditionally pro-European countries.
As a senior member of the convention told the Economist last year, “If 22 countries say yes and three say no, then we have a problem. Legally we cannot proceed; politically we cannot stop.” If only a few states fail to ratify, the others may effectively force them out of the EU by negating the consolidated treaties and replacing them with the new constitution. This would be illegal but probably politically manageable. If, however, a larger number of states refuse to sign up, the constitution could be abandoned altogether in favour of a return to the gradualist approach to institutional reform that the EU has traditionally pursued. A further possibility, of course, is that states that reject the constitution could voluntarily withdraw – an option that has never legally existed until now. Of all the major states, Britain is the most likely to eventually disaffiliate from the Union.
Although Tony Blair’s Labour government is insisting that there will be no referendum on the constitution, the sheer force of public opinion – aided by the sheer direness of the constitution itself – will make it politically fraught for the Prime Minister to simply force it through Parliament. If it becomes too obvious to ignore that the constitution lacks support, both amongst the electorate and in the House of Lords, he may simply announce that Britain will reject the constitution rather than call a referendum he cannot win.
Red Lines and Green Lights
Blair has cited taxation, foreign policy and defence policy as the three “Red Line” issues on which he will not accept the constitution’s integrationist proposals. These represent only a tiny fraction of the issues the government should be contesting, but Blair’s delegates have been predictably inept at defending even these three limited areas. Hain opposed the creation of a European foreign minister and the mandatory co-ordination of economic policy, but was defeated on each.
The British government also quickly and feebly abandoned its opposition to the entrenchment of the EU’s truly risible Charter of Fundamental Rights, according to which a free job placement service is a “fundamental right”. Britain had at least two reasons – one legal, one economic – to maintain its opposition to the Charter. The legal objection is that Britain, like Ireland, is a common law country in which rights evolve through precedent and case law. The economic objection is that the Charter could be a Trojan horse for the reinstatement of labour market regulations that Britain – again, like Ireland, and also Holland – has spent the past two decades removing. It is instructive that these three liberal economies enjoy lower structural unemployment than the monolithic social markets of France, Germany and Italy.
The British argue that the insertion of two caveats has protected their position. First, the Charter will only apply to EU laws and institutions, not domestic ones. Second, the Charter’s preamble requires the European Court of Justice to give “due regard” to a supplementary interpretive document. However, nobody else believes that either of these safeguards is credible or durable. The ECJ will quickly recognise the absurdity of confining “fundamental” rights to EU employees only, and will begin widening access to those rights accordingly. The “due regard” clause is too vague and weak to seriously constrain the ECJ.
Getting off the Euro-Train
British withdrawal from the EU may ultimately prove the cleanest solution for both parties. Any objective cost-benefit analysis of Britain’s EU membership shows that withdrawal would have negligible impact on the overall UK economy. Two years ago, the Economist quoted a study entitled “Better Off Out?” by Brian Hindley, a trade scholar and adviser, and Martin Howe, a QC who specialises in European law, that estimates the impact of secession would be less than 1% of British GDP – and it is not even certain whether that would be an increase or decrease.
The more likely alternative, of course, is that it will be the constitution itself – rather than the EU memberships of the countries that refuse to ratify it – that will be rendered void. In such a case, whatever the future of the Union is, it will certainly not be the single polity hinted at by the “ever closer union” clause in the Treaty of Rome half a century ago. History is likely to record that European integration peaked with Maastricht and declined thereafter. The impossibility of cultivating a single European demos from 25 different nations and establishing the EU as its central sovereign should be accepted, and a new, more humble, project embarked upon.
Anatole Kaletsky of the Times, one of the most realistic and judicious observers of European affairs, is surely perspicacious to argue that the future of Europe lies in “a patchwork of intersecting alliances and co-operative arrangements, in which different nations will play their different parts in a variety of different ways.” Eurocrats can give this concept as many pretentious nicknames as they like (variable geometry, enhanced cooperation, multi-layered Europe, Europe à la carte, etc) but the idea is as simple as it is compelling: the definition of EU membership will be belonging to the single market, and all integrationist ventures beyond that (such as defence, fiscal policy and immigration law) will be purely voluntary.
Only with substantial – rather than rhetorical – subsidiarity can a 25-state EU enjoy both success and legitimacy. Precisely because it provides no such thing (and, indeed, transfers power in the opposite direction) Giscard D’Estaing’s lamentable constitution deserves the death it will inevitably meet in the coming years.