Opinion Summer 2005

Don’t Drop the EU Constitution: Improve It
By Andrew Duff

Now that the proposed EU constitution has been rejected by substantial majorities in the French and Dutch referendums,
the European Union has to decide what it can salvage from the wreckage. The need to make the Union more efficient and more democratic, which the constitution would have done, has not gone away and will only intensify if the Union is to be further
enlarged. The best solution would be to revise and improve the constitution to make it more acceptable to European voters, and resubmit the new version for ratification when the time is ripe.

The current version of the constitution is dead. Although the French and Dutch referendum campaigns and, arguably, their outcomes were fairly superficial, the fact is that the constitution cannot come into force without the consent of all 25 member states of the European Union. Each of those states can
decide how it chooses to ratify the constitution ­ no matter how misguided the choice or erratic the outcome. Attempts in the Convention that drafted the constitution to amend these rigid ratification procedures were roundly defeated, not least as a result of the efforts of the UK government.

The immediate reaction of the French and Dutch governments was to deny that their countries could be asked to vote twice on the same treaty text. That remains their official position, and is likely to stay so. Both French President Jacques Chirac and Dutch Prime Minister Jan Peter Balkenende, already unpopular, have been further weakened by their defeats in the referendums. But there is no reason why, in due course, France, the Netherlands and the other member states should not be asked
to ratify a different text more likely to appeal to those who opposed the current version.

A second ratification attempt would probably have to wait until after Mr. Chirac and Mr. Balkenende have left the scene. Neither, however, can last for ever ­ or now, it would seem, for long. Mr. Chirac’s term as President is due to end with the next French presidential elections in spring 2007, and Mr. Balkenende faces a parliamentary election at the same time, which could also remove him from office.

The European Council that met, amid some panic, in mid-June took an improbable decision about the future of the constitution that has, if anything, only confused the situation further. The nine member states which at that time had already ratified the constitution were unwilling to admit that they had been wasting their time.

“The European Council decided to engage in a year’s reflection, with no specified purpose, about the future of Europe”

Those who had already planned referendums in the near future ­ above all Luxembourg ­ were highly agitated about the increasingly disaffected state of their public opinions. Euroskeptics everywhere hailed the defeat of the constitution. Faced with these conflicting tendencies, the European Council took not one decision but two: in effect, both to continue with the ratification process despite the two rejections (but without the original deadline of October 2006) and, at the same time, to engage in a year’s reflection, with no specified purpose, about the future of Europe.

Commentators, both in the media and in the European Parliament, were unsympathetic. Nobody could satisfactorily explain how it is possible simultaneously both to ratify and to reflect. Few had any ideas about how suddenly to instigate a profound debate. It stretches credulity to imagine that the European Council itself could be capable of stimulating and managing a large engagement with European citizens.

This is especially so for a European Council that will be presided over by British Prime Minister Tony Blair until the end of 2005. Mr. Blair is the leader of a country whose official policy towards the constitutional Convention on the Future of Europe was to seek to stop its establishment in the first place, then to restrict its mandate and lastly to play down its results. And is this not the same Tony Blair who connived to suppress all mention of Europe in the recent British general election campaign? And even the same Tony Blair who has now ditched two promised referendums in Britain about Europe?

Luxembourg’s solid approval of the constitution in a referendum on July 10 should at least calm some ragged nerves before the long European summer vacation. Come September, however, Europe will need some fresh thinking about what to do next. A period of reflection with no dynamic will all too easily end in stagnation and public cynicism.

What, then, should happen in the autumn? First, it would be sensible to acknowledge that the problems that led to the setting up of the Convention in the first place have not disappeared. In fact, the pace of globalization, demanding a coherent and, above all, a political response from the European Union, has increased. Europe still needs a more effective system of government and streamlined decision making. More than ever, Europe must be able to stand on its own feet in world affairs, and to enhance parliamentary democracy at the federal level. Faced with demands for further enlargement, not least from Turkey, the European Union needs its own home-grown Charter of Fundamental Rights.

Second, the European Union should analyze carefully what the voters are saying. Did they reject the constitution because they had read it, and, having understood it, disliked it? Or were they rather expressing alarm at a number of political developments ­ some, but by no means all, associated with the European Union? Would increased popular identity with and even affection for policy outcomes engendered in Brussels swing public opinion in favor of the constitution?

The Convention had not been allowed to delve too deeply into the existing common policies of the European Union. Indeed, pressure from the floor of the Convention to subject common policies to a thorough overhaul was strongly resisted by a majority of national governments. As a result, the policies of the Union remain in the new constitutional text much as they have been since their creation. Some, like the notorious Common Agricultural Policy (CAP), are nearly 50 years old.

As a result, one can search the constitution in vain to find the Lisbon agenda on economic reform, agreed by EU leaders in 2000, the objectives of a reformed CAP, the details of asylum
and immigration policy or the tougher criteria already being applied to countries seeking accession. Part III of the constitution, which covers the policies and functioning of the Union, needs a radical redrafting in order to modernize and refresh those very policies which provoked most disfavor in the French and Dutch referendum campaigns.

Top of the list is consolidation of the European single market, and its completion, not least in the services sector, so
as to ensure that workers can move and work across the European Union without spurious obstacles being put in their way by national governments. The Union would also benefit from a positive, bold political decision to place climate security at the heart of all its common policies.

Not all the revisions to the constitution need to be about the content of policy. There could well be spillover from a focus on policy into institutional matters, especially those concerning the economic governance of the Union, where the Convention made next to no change. The 12 states that are members of the euro zone could be expected to agree to strengthen their internal coordination of macroeconomic policy. Any revised Part III would be almost bound to include a more forceful and centralized common budgetary policy.

“Any revision would be almost bound to include a more forceful and centralized common budgetary policy”

In addition to such political changes, a revision of the constitution should seek to create a proper hierarchy between the four different parts of the constitution so that Part III becomes
distinctly subsidiary to the genuinely constitutional provisions of Part I, which sets out the values and overall aims of the Union, describes the structure and powers of its institutions, and defines the Union’s competences and the conditions of membership. Part II, the Charter of Fundamental Rights of Union, could be moved to enjoy a similar relationship to the constitution proper as the Bill of Rights has to the U.S. constitution. And greater flexibility should be introduced to make it easier for the constitution to evolve in future to meet changing social, economic and political circumstances.

One problem will be to persuade the countries that have already ratified the existing constitution to go through the process all over again with an amended text. The new version will clearly have to be much more attractive to the general public if governments are to dare to seek a second round of ratification and campaign hard for it. But that in itself is an argument for making the new version more obviously responsive to public criticism and to the real needs for better policies and decision-making procedures in Brussels.

There will be many proposals for the technique of arriving at a new consensus on a revised constitution, including the establishment of groups of wise men and congresses of parliamentarians. But the mechanism eventually adopted for this renegotiation has to be another Convention, with a fresh mandate and new composition. Parliamentary, pluralistic and open, only a new Convention would have the legitimacy, authority and expertise to renegotiate the first, failed text. A wise British presidency of the Council would exploit the self-imposed period of reflection to prepare the ground for the new Convention.

Andrew Duff is the Liberal Democrat Member of the European Parliament for Eastern England and spokesman on constitutional affairs for the Alliance of Liberals and Democrats for Europe (ALDE). www.andrewduffmep.org


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