Picking the cherries

Which parts of the EU's Constitutional Treaty should be retained, if any? And how should the EU go about deciding on this?

These two closely linked questions are likely to be the most contested issue this year in EU law or politics. And if a deal on a new Treaty is reached, they will be contested for more years to come.

The first question is how to go about deciding on this issue. Here Angela Merkel has decided to provide for us a demonstration of how it should NOT be done. Or at least, that is the only plausible explanation for her tactics. Did she really imagine that her secret letter, suggesting a handful of minor changes to the Treaty for the sake of 'presentation', would not be made public? Even assuming that it would not be made public, did she really assume that no-one would notice that a new IGC convened with such a mandate, and then the new Treaty agreed on such a basis, would consist of the old Constitutional Treaty except for a handful of minor changes for the sake presentation?

Europhobes will probably say that any new Treaty, no matter what its content, is the same as the old Constitutional Treaty, which just a handful of presentational changes. Why make it easier for them by actually taking this approach?

The Eurosceptical press and websites are, despite their misunderstanding (to put it kindly) of some of the content of the Constitutional Treaty, quite right to object to the approach outlined in the Merkel letter, which smacks of cynicism and deceit.

A vaguely more plausible explanation for the Merkel letter saga would be that it constitutes an opportunity for the anti-Constitution Member States to shoot the suggestions down, and so to prove their credentials to a domestic audience. But such a tactic risks rather increasing the irritation and suspicion of members of the public and parliamentarians who are critical of the Constitutional Treaty, as well as those who are not.

Anyway, if that is the script, Tony Blair at least is not playing his role. The government has not systematically rejected the approach of the Merkel letter. But it has not approved it either. The government's detailed position does not seem to have been set out in public -- Blair has expressly refused to negotiate in public. So while the Eurosceptic press is wrong to say that Blair has signed up to the Merkel approach, it is understandable that people are suspicious when they don't know what the government's position actually is. The government is saying it rejects the idea of an EU legal personality, one point mentioned in the Merkel letter -- but what else would it reject, if anything?

And so for the substance -- should anything be saved from the Constitutional Treaty at all? Or, from a different angle, should any attempt to keep anything from the Constitutional Treaty be subject to a referendum, at least in those states which held one, or promised to hold one, on the original text?

The 'No' votes in France and the Netherlands obviously have to be respected. Of course, so do the public and parliamentary 'yes' votes in a larger number of Member States. But there is no escaping the fact that approval by all Member States is necessary for the Constitutional Treaty to take effect, and furthermore the defeat of the Constitutional Treaty in the UK and probably at least one more Member State was looking likely by summer 2005, according to the opinion polls. Any way forward therefore has to be a compromise between those Member States that accepted 100% of the Constitutional Treaty, and those who could or probably would not.

Could it be said that that the two 'No' votes should mean that it is illegitimate to negotiate any new treaty containing any part of the Constitutional Treaty? No. The post-referendum research showed that French and Dutch voters had a number of reasons for voting 'no'. Some were unconnected to the EU, some were about the EU in general (in particular enlargement), some concerned misconceptions about the Constitutional Treaty, some concerned the provisions of the Constitutional Treaty that just repeat some provisions of the existing Treaties (and some of these were in turn based on misconceptions of the current Treaties), and some were genuinely about the Constitutional Treaty. Some 'No' votes were surely cast for a combination of those reasons.

But even among the voters voting 'No' solely because of the specific provisions of the Constitutional Treaty (assuming that they had not been misled about its provisions), who were surely a minority of the overall 'No' vote, how many were voting against every 'new' provision of the Treaty (ie, as distinct from the parts of the Treaty that reproduce the current Treaties)?

There cannot be many 'No' votes which were cast on such a basis. So bringing back parts of the Constitutional Treaty cannot be seen as ignoring the public will. Of course, the greater the proportion of the Constitutional Treaty which is brought back, the greater will be the perception that the public will is being ignored. And there will be truth to that, too. If 95% of the Treaty is brought back, it is likely that this 95% will include a large number of provisions that many of the 'No' voters sought to vote down (to the extent that the 'No' voters were actually voting against the specific provisions of the Constitutional Treaty. Even if they weren't, a large number will be peeved by such an approach).

If only 50% of the Treaty is brought back, then it will surely contain rather fewer provisions which a large number of 'No' voters had sought to vote down. Of course, this depends on the selection of provisions which are retained. Another factor is the question of whether any new provisions are added, or whether parts of the Constitutional Treaty are kept but amended (ie changing the provisions on subsidiarity to strengthen the powers of national parliaments).

So what is the right way forward? The Constitutional Treaty contained some useful provisions to strengthen the democratic legitimacy of the EU and to ensure more effective functioning of the political institutions, as well as to enhance the effectiveness of the Court of Justice, including the removal of unjustified restrictions on its jurisdiction over the area of 'freedom, security and justice'. It also contained some useful provisions on human rights, although unfortunately the provisions, scope and effect of the EU's Charter of Rights have been widely misunderstood. There were also a number of extensions of qualified majority voting (many of which were limited by 'emergency brakes' or opt-outs) and some new or revised EU powers, some of which were pointless (what would the powers over energy really add to the EU's ability to regulate energy by means of its current internal market and environment powers, and the Euratom Treaty? Any does the EU need a power to regulate public services, since it can already liberalise them and regulate them in the process by means of its internal market and competition powers?).

It would be better, in light of public disaffection with and alienation from the EU, to focus on the provisions of the Treaty which would most reconnect the EU with its population, such as the provisions on subsidiarity and transparency, which should be strengthened, and avoiding as much as possible new powers or extensions of qualified majority voting regarding substantive EU powers (ie powers to adopt legislation) unless very clear and airtight limits and safeguards are provided for. On the other hand extensions of QMV relating to the institutional functioning of the EU (ie QMV for the creation of new EU lower courts or the adoption of a code of administrative procedure for EU institutions) do not impose any further on national policies.

The various provisions regarding the Court of Justice should be retained in order to ensure the effective review of and uniform interpretation of EU law. On the grounds of increasing democratic control at EU level, so should the provisions extending co-decision, budget and external relations powers of the EP, except where this would also mean abolishing unanimity for Member States over the adoption of legislation.

As for the institutions, the Commission seems to function effectively enough with 27 members -- or at least the gain in efficiency from an 18-member Commission would be outweighed by the loss of public legitimacy that would follow. But the provisions on EP involvement in the appointment of the Commission President should be retained and strengthened. The political risks in retaining the revised system for Council voting are probably not worth the bother. It would be sufficient to strengthen the existing post of the foreign policy high representative modestly for now. There is no point to the post of 'President' of the European Council, whatever the post is called, as long as this body meets only 3 or 4 times a year. Is the rotating Council, and European Council, Presidency really as ineffective as is made out? What decisions are not being made, and what legislation is not being adopted, or significantly delayed, as a result of this system?

In light of widespread misunderstanding about its effect and scope, the EU Charter of Rights should either be left out of the Treaty altogether or subject to further amendment to address public concerns, ie to specify that nothing in the Charter shall affect national law on abortion or strikes. But to strengthen external review of the EU's actions, the provision for EU accession to the ECHR should be left in.

A further IGC could be scheduled for, say, 2012, to see if further changes might be necessary, including the remaining provisions of the Constitutional Treaty which were left out.

Such a treaty could enhance democratic and judicial control of the EU and limit the extension of its powers, and of majority voting, to the minimum which is strictly justified, while sufficiently improving the functioning of its institutions.

Finally, it should be observed that the possibility of any reasonable compromise on this issue is being threatened by the intransigence of the pro-Constitution states, such as Spain, insisting on 100% of the Constitutional Treaty or even more.

What if you felt you were worth another 10,000 pounds in salary, and there was no realistic prospect of finding another employer or starting another career? (By analogy there is no alternative process of European integration which could very easily be set up). Would you insist that your current employer pay you the full 10,000, or else you would quit? Would you refuse to accept 1,000, or 3,000, or even 5,000 or 8,000, and the promise of a further review later? A rational employee under these circumstances would accept what he or she could get.

And was European integration ever pushed forward by these methods? Did Monnet say 'give me the European Defence Community, or the European Political Community, or British membership, or nothing else'? No -- the cleverest supporters of European integration have always been pragmatists, searching for the windows of opportunity which were politically realistic to pursue, as far as they could be pursued, at any given moment. (a badly mixed metaphor, but never mind). If that strategy had been pursued, we would still be waiting for the original Common Market to be formed.

The alternative federalist approach of a constituent assembly drafting a European constitution has now been (essentially) tried -- and has failed.

Eurosceptics should get down on their knees and thank God that we have Zapatero instead of Monnet as the high priest of European integration today -- unless, of course, Zapatero is simply playing a tactical game...